Klinger v. University of Southern Mississippi et al
Filing
45
MEMORANDUM OPINION AND ORDER granting 31 Motion to Dismiss; granting 31 Motion for Summary Judgment; finding as moot 44 Motion to Strike. Plaintiff's Complaint is dismissed with prejudice. A separate Judgment will be entered herein. Signed by District Judge Keith Starrett on 12/5/2013 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
DR. SCOTT KLINGLER
PLAINTIFF
VS.
CAUSE NO. 2:12cv150-KS-MTP
UNIVERSITY OF SOUTHERN MISSISSIPPI (U.S.M.);
DR. MARTHA SAUNDERS, INDIVIDUALLY AND
OFFICIALLY; DR. ROBERT LYMAN, INDIVIDUALLY
AND OFFICIALLY
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment [31]. Having considered the submissions of
the parties, the record and the applicable law, the Court finds that the motion is well
taken and should be granted.
I. BACKGROUND
The Plaintiff Dr. Scott Klingler asserts several federal and state law claims in
relation to his former employment at the University of Southern Mississippi (“USM”) in
Hattiesburg, Mississippi. Defendant Dr. Martha Saunders was the President of USM at
all times relevant to the Complaint. Defendant Dr. Robert Lyman was the Provost of
USM from approximately June, 2008 to November, 2011.1
Dr. Klingler began his employment at USM in August of 2007 as a visiting
professor. Effective August, 2008, Dr. Klingler was retained as an Assistant Professor
of Library and Information Science at USM’s School of Library and Information Science
1
“The Provost is the chief academic officer and the senior university officer next to
the President.” (Faculty Handbook [39-18] at § 2.3.)
(“SLIS”).2 This was a tenure track appointment. The tenure track at USM is typically
composed of six annual contracts. The contracts of non-tenured faculty members,
including tenure track professors such as Dr. Klingler, are subject to non-renewal “for
any reason.” (Faculty Handbook [39-18] at § 3.11.5, 3.11.6.)
Most of the events central to this dispute have their origination in the fall of 2010.
Dr. Klingler was teaching an online course labeled “LIS 458/558” during this time period.
(Klingler Dep. [39-1] 55:15-56:13.) LIS 458/558 included a “chat component” in which
students “type in their comments or responses to questions or inquiries and others type
their inputs back.” (Klingler Dep. [39-1] 56:9-13.) Dr. Klingler had the ability to log out
of the chat discussion, while continuing to see what students were discussing. (See
Klingler Dep. [39-1] 57:7-10.) Dr. Klingler did this during a chat discussion on
November 8, and one of the students referred to Dr. Klingler as “a joke” and stated that
“he doesnt’ [sic] prepare” after it appeared that he had left the chat room. (Doc. No. [3922] at p. 4.) After the chat discussion ended, this same student sent an e-mail to Dr.
Melanie J. Norton (Chair of the SLIS and Dr. Klingler’s supervisor)3 generally expressing
disappointment in her classes with Dr. Klingler and specifically advising that “Dr. K
rarely adds to the discussion nor corrects misinformation.” (Doc. No. [31-8].)
On the morning of November 9, 2010, Dr. Klingler and a graduate assistant by
the name of Shane Hand had certain interactions that ultimately resulted in Dr. Klingler
2
The SLIS is a division or department of USM’s College of Education and
Psychology.
3
Unless otherwise indicated, stated job titles or positions relate to the time period of
the described events and may not reflect an individual’s current status.
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being escorted from campus by two members of USM’s Police Department. According
to Mr. Hand, Dr. Klingler seemed angry and exhibited unusual behavior by cursing and
sitting uncomfortably close to a female graduate assistant. (See Hand Statement [322]; Hand Dep. [39-3] 46:19-24, 69:3-18.) Also, Dr. Klingler had Mr. Hand review
printouts of the chat logs from the LIS 458/558 class the night before, but Dr. Klingler
oddly handed and took back the chat logs several times. (See Hand Dep. [39-3] 38:2239:9, 69:3-70:10.) Mr. Hand eventually reviewed the chat logs and told Dr. Klingler that
the student who referred to him as a joke “stepped over the line”. (Hand Dep. [39-3]
44:11-20). Mr. Hand contends that Dr. Klingler then stated, “I have never shot a student
and what that girl said does not bother me, but I think about it and I think about it a lot.”
(Hand Dep. [39-3] 71:23-72:2.) Dr. Klingler denies making this statement. (See Klingler
Dep. [39-1] 49:13-50:7.) Dr. Klingler contends that he said something to the effect that
“I’ve never shot anybody for not giving feedback”, and then stated one to three minutes
later, “I’ve thought about it; I’ve thought about it a lot”, which pertained to what he could
have done differently as to the LIS 458/558 class the previous night. (Klingler Dep. [391] 132:12-133:7.) “They were two completely distinct statements.” (Klingler Dep. [39-1]
133:6-7.)
Approximately one week prior to November 9, 2010, Mr. Hand, Dr. Klingler and
other individuals in the SLIS department attended a program presented by USM’s Chief
of Police, Bob Hopkins, regarding violence on campus. (See Klingler Dep. [39-1] 46:1925, 49:2-7; Hand Dep. [39-3] 68:3-24.) According to Mr. Hand, program attendees were
“instructed to not take things as a joke, that if we were to see anything or hear anything,
our job was to report it.” (Hand Dep. [39-3] 68:17-24.) On November 9, Mr. Hand
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“reported what . . . [he] heard” during his interactions with Dr. Klingler to Edmond Pace
(another graduate assistant), Adrienne Patterson (Mr. Hand’s immediate supervisor and
Dr. Norton’s administrative assistant) and Beverly Davis (the graduate secretary).
(Hand Dep. [39-3] 28:19-29:20, 69:1-2.) Ms. Patterson subsequently reported the
matter to her supervisor, Dr. Norton. (See Norton Dep. [39-2] 36:11-15.)
On the afternoon of November 9, a meeting was held between Dr. Norton, Dr.
Lyman, Chief Hopkins, Dr. Ann Blackwell (Interim Dean of the College of Education and
Psychology) and Dr. Becky Woodrick (Director of the Office of Affirmative Action) to
discuss the incident involving Mr. Hand and Dr. Klingler. Mr. Hand was brought in and
questioned at one point during the meeting. Subsequently, the decision was made to
remove Dr. Klingler from campus until the matter could be further investigated. Dr.
Klingler was formally advised of this decision through a letter signed by Dr. Blackwell.
The letter states in pertinent part:
You are being placed on paid administrative leave of absence effective
immediately until such time that a review can be completed regarding
allegations of potential harm to others. You are not to return to campus,
have contact with any students, teach classes, or participate in any
university-related activity or function until further notice from this office.
(Doc. No. [32-5].) The letter was hand-delivered to Dr. Klingler in Dr. Blackwell’s office.
(See Klingler Dep. [39-1] 101:13-21; Norton Dep. [39-2] 52:18-54:2.) Dr. Klingler was
subsequently escorted to his vehicle in the faculty parking lot by two USM police
officers. (See Klingler Dep. [39-1] 101:22-102:24.) Dr. Klingler was not handcuffed,
physically touched or pushed by the officers. However, they walked so close to him that
he would have been “run over” had he not moved. (Klingler Dep. [39-1] 118:11-15.)
Following Dr. Klingler’s removal from campus, Dr. Blackwell requested that Dr.
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Thomas Lipscomb (Interim Associate Dean for the College of Education and
Psychology) investigate the November 9 incident and obtain Dr. Klingler’s version of
events. (See Blackwell Dep. [39-10] 11:21-12:3; Lipscomb Dep. [39-6] 16:9-11, 34:1921, 47:14-18.) Dr. Blackwell charged Dr. Lipscomb with this task because he had no
prior knowledge of the incident. (See Blackwell Dep. [39-10] 12:4-12.) Dr. Lipscomb
met with Dr. Klingler on December 6, 2010, at USM in furtherance of his task. (See
Klingler Dep. [39-1] 65:24-66:5; Lipscomb Dep. [39-6] 25:23-26:9.) Besides Dr.
Lipscomb and Dr. Klingler, legal counsel for USM, legal counsel for Dr. Klingler, and Dr.
Klingler’s wife were present at the meeting. Dr. Lipscomb provided Dr. Klingler with a
copy of a typed statement given by Mr. Hand to Officer Keys on November 23, 2010,
regarding the November 9 incident,4 and Dr. Klingler then advised Dr. Lipscomb of his
understanding of the matter. (See Klingler Dep. [39-1] 66:6-12, 73:4-18; Lipscomb Dep.
[39-6] 64:17-25.) Dr. Lipscomb issued a written report to Dr. Blackwell on December 9,
2010, providing the following salient information with respect to the December 6
meeting:
Of particular concern was a report that he [Dr. Klingler] may have made a
statement possibly indicative of the potential of harm to another individual.
Dr. Klinger [sic] indicated that he did not know of any such statement that he
may have made, and on the advice of University Counsel he was provided
with a copy of Mr. Hand's statement to Det. Keyes. Dr. Klingler and his
attorney left the room to review that document. Upon their return, Dr. Klingler
provided an account of the events beginning with a discussion of the online
chat sessions from Monday, November 8, and his discussion of the chat logs
with Mr. Hand the next morning. During this account, Dr. Klingler
acknowledged that he may have made a statement similar to that reported
by Mr [sic] Hand but if he had done so it "was in jest" and that he "certainly
was not serious about shooting a student." He added, "That is ludicrous".
4
(See Hand Statement [32-2].)
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(Doc. No. [33-4] at p. 2.) Dr. Klingler contends that both Mr. Hand and Dr. Lipscomb
incorrectly reported his comments. (See Klingler Dep. [39-1] 66:6-15.) Dr. Lipscomb
did not reach any conclusion as to what actually occurred between Dr. Klingler and Mr.
Hand on November 9. (See Lipscomb Dep. [39-6] 56:20-25, 58:24-59:3.)
USM contends that Dr. Klingler “began sending messages by email and
Facebook to students and others requesting that these individuals provide support for
him with U.S.M. administration” subsequent to his meeting with Dr. Lipscomb. (Defs.’
Mot. to Dismiss/SJ [31] at p. 11.) It is undisputed that on January 13, 2011, Dr. Klingler
posted a message on Facebook advising, inter alia, that he had “been wrongfully
accused by a Graduate Assistant . . . [of] threaten[ing] a student with bodily harm with a
gun”, and requesting support from former students. (Doc. No. [33].) Dr. Klingler also
posted on Facebook the November 9, 2010 letter from Dr. Blackwell placing him on
administrative leave, Mr. Hand’s November 23, 2010 statement, and a mock photo
seeming to indicate that Dr. Klingler had been booked and arrested by USM Police.
(See Doc. Nos. [33-1], [33-2], [33-3].)
On February 18, 2011, Dr. Lyman addressed two letters to Dr. Klingler regarding
his employment at USM. One letter advised Dr. Klingler that his contract of employment
for the 2011-12 academic year would not be renewed upon its expiration, and that his
employment at USM would terminate at the conclusion “of the academic year ending
May, 2012.”5 (Doc. No. [33-5].) The other letter relieved Dr. Klingler of his teaching
5
Policy & Bylaw No. 403.0102 of the Board of Trustees of State Institutions of Higher
Learning (the “Board of Trustees”) requires that written notice of the intention not to
renew a tenure track faculty member be furnished “not later than September 1 before
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obligations for the remainder of his employment and limited his duties to full time
academic research. (Doc. No. [33-6].) Dr. Klingler was further advised that his
continued employment was subject to several restrictions, such as not returning to any
USM campus or initiating contact with any current student. (Doc. No. [33-6].) The
following excerpts from Dr. Lyman’s deposition appear to supply the rationale for these
decisions:
Q.
[W]hat was the allegation of the university as an entity, to your knowledge,
against Dr. Klingler as of February 2011?
A.
I think -- probably as of February 18, I think there was no active
accusation. I think, as of that time, I think what we had determined -- what
I had determined was that Dr. Klingler's performance in instruction was
probably such that we did not want to retain him. And that over the period
of time from November until February, he had demonstrated a propensity
to involve and engage groups in this issue that we felt should not be
involved in it, such as his students, and that we would be better served by
his absence from campus; therefore, he was relieved for the remainder of
his time at USM from teaching responsibilities and placed on research
only.
Q.
Let me break that down. First of all, are you aware he wasn't even on the
campus from November 9?
A.
Absolutely.
Q.
No. But you said just then, whether you realize it or not, between
November and February, you said his actions have been this and this and
this. Well, he had no actions for you to disparage during that time frame.
the date of termination of a contract” as to any faculty member with two or more years of
service. (Doc. No. [35-4].) Mississippi’s state institutions of higher learning, such as
USM, are under the management and control of the Board of Trustees. See Miss.
Const. art. 8, § 213-A; Miss. Code Ann. § 37-101-1.
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A.
That's absolutely untrue. He had electronic presence via Facebook. He
visited a student in the hospital.[6] He had many actions that we objected
to.
Q.
How in the world can you object to him visiting a student in the hospital?
A.
Because he was told not to contact students.
Q.
But you have no authority to tell him that.
A.
I don't see how you can say that.
Q.
What written authority do you have -....
A.
When we think someone is potentially or possibly dangerous to the
students, we have an obligation to try and protect those students, and a
responsible action in accomplishing that is to say, You are prohibited from
having any contact with students.
Q.
But the only way you can determine that is to provide some kind of
hearing so he can defend himself. You can't just go and allege something,
sir, and and say that's a fait accompli and then, therefore, you're going to
be banned forever. There's no authority for that.
A.
We did not ban him forever based upon the potential for violence. What
he was banned for after February 18 was the fact that he was out
agitating. He had placed Mr. Hand's statement -- police statement on his
Facebook page. He had done any number of things in the face of
directions not to do that, and that's the definition of contumacious conduct,
which is one of the reasons for determination for cause in the IHL
handbook.
Q.
But he wasn't terminated for cause.
A.
He wasn't. And if you look at some other documents, you can see that
was a point of discussion that some were advocating. And I just
mentioned Blackwell and Norton saying that we should terminate the man,
6
A USM Police Department Report [34-2 at ECF p. 52] indicates that on December
30, 2010, Dr. Klingler contacted a former graduate student, who was visiting her mother
at Forrest General Hospital, and told her that he was on administrative leave and was
not supposed to be speaking with students.
-8-
and I said, No. What we'll do is we'll place him on leave. He can do his
research. He'll continue to get paid. He'll have almost a year and a half of
continued employment and then we will part ways, mainly because he did
not follow instructions, and his teaching performance was problematic. He
couldn't manage his contacts with students.
Q.
Teaching, in his annual evaluations, wasn't problematic.
A.
Well, certainly terminating a chat room, his students calling him a joke,
making extravagant statements, however serious they were, to Mr. Hand,
prior reports on a number of occasions of making female students feel
uncomfortable, all of these were indications of a non-optimal teaching
performance.
(Lyman Dep. [39-5] 48:4-49:12, 49:19-51:10.)
On February 28, 2011, Dr. Klingler directed two letters to USM officials regarding
his employment. One letter was addressed to Dr. Lyman and provided: “[I]t would
probably be better if our attorneys handled this matter. Please have the university
counsel contact my attorney, Mr. Kim T. Chaze, regarding your letters dated February
18, 2011.” (Doc. No. [33-7].) The other letter was addressed to Dr. Norton and
indicated that Dr. Klingler was filing a grievance pursuant to paragraph “12.2.2 of the
Faculty Handbook and especially sub paragraphs a, b, d, and f.” (Doc. No. [33-8] at p.
1.)7 In summary, Dr. Klingler complained that he was entitled to a hearing to defend
himself if there were any allegations against him; that he objected to USM changing the
terms and conditions of his employment; that there was no authority for banning him
7
Faculty employment grievances under section 12.2.2 of the Handbook “apply to:
(a) annual performance reviews; (b) pre-tenure reviews; . . . (d) non-renewal of
employment of non-tenured faculty; . . . and (f) grievances alleging a violation,
misinterpretation or misapplication of a rule, policy or procedure in relation to personnel
policies, procedures, or practices including teaching assignments, working hours,
release time, general working conditions, nonacademic leave, employment benefits,
etc.” (Faculty Handbook [39-18] at § 12.2.2.)
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from campus; that his right to become tenured was being taken from him; and, that he
demanded a name-clearing hearing. (See Doc. No. [33-8] at pp. 1-2.)
There were numerous communications between counsel for USM and counsel
for Dr. Klingler between March and June of 2011 regarding Dr. Klingler’s grievance.
(See Doc. Nos. [34-2 at ECF pp. 67-87, 126-138], [34-7].) It appears that by late April,
the parties contemplated a “global grievance hearing” in which Dr. Klingler’s complaints
would be addressed by the University Advisory Committee (“UAC”)8 to the exclusion of
other grievance procedures specified in the Faculty Handbook. A hearing date of June
22 was eventually agreed upon, but the parties failed to work out an agreement
regarding the specific procedures to be followed as the hearing date neared. Thus,
USM moved forward with a “grievance conference” pursuant to section 12.2.4 of the
Faculty Handbook.9 Dr. Klingler and his counsel declined to attend the conference
because they considered it “a waste of time and money to ‘confer’ when only Dr. Norton
will be present, and we regard such an act as harassment in and of itself.” (Doc. No.
8
The UAC “is composed of two members from each of the College Advisory
Committees plus one member from the library.” (Faculty Handbook [39-18] at § 2.11.1.)
Each academic college at USM is required to maintain a College Advisory Committee
“composed of tenured Associate Professors and tenured Professors elected by secret
ballot by the full-time facult[y] . . . .” (Faculty Handbook [39-18] at § 2.11.2.)
9
“Upon receipt of a grievance, the departmental personnel committee or department
chair will invite the involved parties to a conference at an early date convenient to both
parties, in order to attempt to informally resolve the grievance. At the conclusion of the
conference, the chair of the departmental personnel committee/department chair will
prepare a written memorandum of the grievance, including any agreement reached, and
provide a copy to the involved parties within ten (10) days.” (Faculty Handbook [39-18]
at § 12.2.4.)
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[35-2].) They, nonetheless, submitted certain written materials to be considered by Dr.
Norton at the conference. The “grievance conference” went forward on June 22, the
date previously agreed upon for the “global grievance hearing.”
On July 1, 2011, Dr. Norton submitted a written memorandum to Dr. Blackwell
containing her findings as to Dr. Klingler’s grievance. (See Doc. No. [34-3].) Dr. Norton
concluded:
After reviewing the documents provided, his grievance letter, considering his
conduct on 11/9/2010 and his conduct after being placed on administrative
leave, I find no reason to believe that we could have handled the situation or
Dr. Klingler in any other way. At no time does Dr. Klingler accept
responsibility for any of his actions, nor does he attempt to comply with
instructions from the Dean or the Provost.
(Doc. No. [34-3] at p. 3.) On July 15, 2011, Dr. Klingler appealed Dr. Norton’s findings
to the College Advisory Committee (“CAC”) for the College of Education and
Psychology. (See Doc. No. [39-15 at ECF p. 17].)10 The CAC met on August 3, 2011,
and found Dr. Klingler’s grievance to be without merit by a vote of four (4) to zero (0).
(See Doc. No. [34-4].) On September 22, 2011, Dr. Klingler appealed the CAC’s
determination to Dr. Lyman, in his capacity as Provost. (See Doc. No. [39-15 at ECF p.
24].)11 The Interim Provost, Dr. Denis Wiesenburg,12 subsequently convened the UAC,
who determined: “1) University procedures were followed and 2) due process was
given.” (Doc. No. [34-5].) The UAC thus recommended to Dr. Wiesenburg “that nothing
10
Section 12.2.5 of the Faculty Handbook specifies procedures available for
requesting that the CAC review a departmental employment decision.
11
Section 12.2.6 of the Faculty Handbook specifies procedures available for
requesting that the Provost further review a grievance.
12
Dr. Lyman resigned from his position as Provost in November of 2011.
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further is required.” (Doc. No. [34-5].) On January 24, 2012, Dr. Wiesenburg advised
Dr. Klingler in writing that he concurred with the UAC’s determination and that Dr.
Klingler’s grievance was without merit. (Doc. No. [43-1].) Dr. Klingler then exhausted
the USM grievance proceedings by appealing Dr. Wiesenburg’s decision to the
President, Dr. Saunders. (See Doc. No. [39-15 at ECF p. 1].)13 On June 26, 2012, Dr.
Saunders addressed a letter to Dr. Klingler stating:
This will acknowledge receipt of your appeal from the Provost's decision
relating to your grievance. Based upon University policy, I have reviewed the
grievance appeal and record relating to your grievance. After a careful
review of the record before me, I have determined that your grievance does
not have merit. Therefore, I concur with the findings of the Provost.
(Doc. No. [34-6].)
USM paid Dr. Klingler’s salary and provided benefits, such as health care, until
his final employment contract expired in May of 2012. (See Klingler Dep. [39-1] 45:1824, 119:11-18.)
On July 19, 2012, Dr. Klingler brought suit against USM, Dr. Saunders and Dr.
Lyman in the Circuit Court of Forrest County, Mississippi. (See Compl. [32-9].) The
Complaint asserts, inter alia, that the “Plaintiff has been wrongfully and illegally
terminated from his tenure track employment as a Professor at USM effective June 1,
2012.” (Compl. [32-9] at ¶ 7.) Dr. Klingler seeks recovery under Title 42 U.S.C. § 1983
for alleged violations of his rights to due process and equal protection. Dr. Klingler also
alleges state law claims of intentional infliction of emotional distress, negligent infliction
13
Section 12.2.7 of the Faculty Handbook specifies procedures available for
appealing the Provost’s decision to the President. Institutional grievances may not be
appealed to the Board of Trustees. (See Faculty Handbook [39-18] at § 12.2.8.)
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of emotional distress, breach of implied contract and breach of express contract.
On September 4, 2012, the Defendants removed the proceeding to this Court.
(See Notice of Removal [1].) Subject matter jurisdiction is asserted on the basis of
federal question jurisdiction, 28 U.S.C. § 1331, and supplemental jurisdiction, 28 U.S.C.
§ 1367. On September 20, 2013, the Defendants filed their Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment [31]. The motion has been fully briefed and
the Court is ready to rule.
II. DISCUSSION
A.
Standard of Review
The Defendants have presented numerous matters outside the pleadings in
conjunction with their dispositive motion. As evidenced above, the Court has
considered those matters. Therefore, the motion will be considered under Federal Rule
of Civil Procedure 56. See Fed. R. Civ. P. 12(d); Young v. Biggers, 938 F.2d 565, 568
(5th Cir. 1991).
Rule 56 provides that “[t]he court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). Initially, the movant has “the
burden of demonstrating the absence of a genuine issue of material fact.” Cannata v.
Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If the movant
meets this burden, the nonmovant must go beyond the pleadings and point out specific
facts showing the existence of a genuine issue for trial. Id. “‘An issue is material if its
resolution could affect the outcome of the action.’” Sierra Club, Inc. v. Sandy Creek
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Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation
omitted).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inferences to
be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary Judgment is
mandatory “‘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.’” Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d
759, 766 (5th Cir. 2011) (quoting Celotex Corp., 477 U.S. at 322).
B.
Federal Claims
Title 42 U.S.C. § 1983 does not provide a general remedy for state law torts or
allow access to federal courts for all individuals suffering injuries at the hands of state
actors. White v. Thomas, 660 F.2d 680, 683 (5th Cir. 1981). The statute “affords a
remedy only to those who suffer, as a result of state action, deprivation of ‘rights,
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privileges, or immunities secured by the Constitution and laws’ of the United States.” Id.
(quoting 42 U.S.C. § 1983). To state a cognizable § 1983 claim, “‘a plaintiff must (1)
allege a violation of a right secured by the Constitution or laws of the United States and
(2) demonstrate that the alleged deprivation was committed by a person acting under
color of state law.’” Doe ex rel. Magee v. Covington County Sch. Dist., 675 F.3d 849,
854 (5th Cir. 2012) (quoting James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.
2008)).
1.
Claims Against USM, Dr. Saunders (in Her Official Capacity)
and Dr. Lyman (in His Official Capacity)
States and state agencies are not “persons” subject to suit under § 1983.
Cheramie v. Tucker, 493 F.2d 586, 587 (5th Cir. 1974). “[A] suit against a state official
in his or her official capacity is not a suit against the official but rather is a suit against
the official’s office” and “is no different from a suit against the State itself.” Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)
(citations omitted). Accordingly, state employees sued in their official capacities are
also improper defendants in § 1983 actions. See id. Nonetheless, a claim for
prospective injunctive relief against a state official, as opposed to a claim for monetary
damages, may be brought under § 1983. See id. at 71 n.10 (citing Kentucky v.
Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Ex parte
Young, 209 U.S. 123, 159-60, 28 S. Ct. 441, 52 L. Ed. 714 (1908)).
USM is an agency or arm of the State of Mississippi. See Suddith v. Univ. of S.
Miss., 977 So. 2d 1158, 1168 (¶ 12) (Miss. Ct. App. 2007); accord Salcido v. Univ. of S.
Miss., No. 2:11cv173, 2013 WL 2367877, at *2 (S.D. Miss. May 29, 2013); Nichols v.
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Univ. of S. Miss., 669 F. Supp. 2d 684, 693 (S.D. Miss. 2009). Therefore, USM is
entitled to judgment as a matter of law with respect to Dr. Klingler’s assertions of due
process and equal protection violations brought via § 1983. The same result follows as
to Dr. Klingler’s demand for monetary damages under § 1983 against Dr. Saunders and
Dr. Lyman in their capacities as officers of USM. Dr. Klingler’s request for injunctive
relief will be addressed in a subsequent section of this opinion.
2.
Claims Against Dr. Saunders and Dr. Lyman in Their Individual
Capacities
Dr. Saunders and Dr. Lyman assert the defense of qualified immunity in
response to Dr. Klingler’s constitutional claims brought against them in their individual
capacities. “Qualified immunity protects public officers from suit if their conduct does
not violate any ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Prison Legal News v. Livingston, 683 F.3d
201, 224 (5th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 73 L. Ed. 2d 396 (1982)). “‘Although nominally an affirmative defense, the plaintiff
has the burden to negate the defense once properly raised.’” Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (quoting Brumfield v. Hollins, 551 F.3d
322, 326 (5th Cir. 2008)). In order to overcome the defense of qualified immunity, the
plaintiff must show: “(1) the official violated a statutory or constitutional right; and (2) the
right was clearly established at the time of the challenged conduct.” Khan v. Normand,
683 F.3d 192, 194 (5th Cir. 2012) (citing Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080, 179
L. Ed. 2d 1149 (2011)), cert. denied, 133 S. Ct. 840 (2013). A constitutional right is
clearly established when it is “sufficiently clear that a reasonable official would
-16-
understand that what he is doing violates that right.” Id. (citation omitted). Courts have
discretion to address the objective reasonableness inquiry first. See Pearson v.
Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). The defense of
qualified immunity, “even on summary judgment, ‘gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those who knowingly violate
the law.’” Poole, 691 F.3d at 627. In addition, the defense alters the summary
judgment burden of proof by requiring the plaintiff to evidence a genuine issue of
material fact. See Tolan v. Cotton, 713 F.3d 299, 304 (5th Cir. 2013) (citing Michalik v.
Hermann, 422 F.3d 252, 262 (5th Cir. 2005)).
For the reasons discussed below, the Court finds that Dr. Klingler has failed to
evince issues for trial as to Dr. Saunders and Dr. Lyman’s alleged violation of any
constitutional right. Thus, the Court need not consider the objective reasonableness of
Dr. Saunders and Dr. Lyman’s conduct (the second prong of the qualified immunity
analysis), and summary judgment will be granted in favor of these Defendants in their
individual capacities on Dr. Klingler’s § 1983 claims.
a.
Due Process
Dr. Klingler alleges violations of his rights to procedural and substantive due
process. As to procedural due process, Dr. Klingler contends that he was entitled to a
name-clearing hearing; that provisions in USM’s Faculty Handbook [39-18] and
Employee Handbook [39-20], which were incorporated into his contract of employment,
were not followed; and, that he was entitled to a pre-termination hearing and posttermination hearing before unbiased decision makers. Regarding substantive due
process, Dr. Klingler contends that he was arbitrarily kept from working, notwithstanding
-17-
his employment contract, before any hearing was held regarding Mr. Hand’s allegations
against him.
The Due Process Clause of the Fourteenth Amendment provides that no State
shall “deprive any person of life, liberty, or property, without due process of law”. U.S.
Const. amend. XIV, § 1. There can be no deprivation of substantive or procedural due
process in the absence of a protected property right or liberty interest. See, e.g.,
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); DePree v. Saunders, No.
2:07cv185, 2008 WL 4457796, at *7 (S.D. Miss. Sept. 30, 2008), aff’d, 588 F.3d 282
(5th Cir. 2009); Suddith, 977 So. 2d at 1170 (¶ 19). “Constitutionally protected property
interests are created and defined by understandings that ‘stem from an independent
source such as state law . . . .’” DePree, 588 F.3d at 289 (quoting Bd. of Regents v.
Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). Liberty interests
may arise from state law or the Due Process Clause itself. See Rhodes v. Thaler, 713
F.3d 264, 266 n.9 (5th Cir. 2013) (citing Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454,
460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989)).
Authorities holding that non-tenured faculty members lack protected property
rights in re-employment or continued employment are legion.14 As explained by the
Fifth Circuit in Whiting:
Mississippi law is clear that neither state legislation nor state
14
See, e.g., Roth, 408 U.S. at 578; Whiting v. Univ. of S. Miss., 451 F.3d 339, 344
(5th Cir. 2006); Lighton v. Univ. of Utah, 209 F.3d 1213, 1222 (10th Cir. 2000); Spuler v.
Pickar, 958 F.2d 103, 107 (5th Cir. 1992); Chu v. Miss. State Univ., 901 F. Supp. 2d
761, 778-79 (N.D. Miss. 2012); Nichols, 669 F. Supp. 2d at 694; Hall v. Bd. of Trs. of
State Insts. of Higher Learning, 712 So. 2d 312, 320 (¶ 31) (Miss. 1998); Wicks v. Miss.
Valley State Univ., 536 So. 2d 20, 23 (Miss. 1988); Suddith, 977 So. 2d at 1172 (¶ 27).
-18-
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.
Just as there is no protected interest which arises from
Mississippi statutes, there is none which arises from state
regulations.
Nor does the written tenure policy of MVSU create or confer an
expectation of continued employment.
Wicks v. Miss. Valley State Univ., 536 So.2d 20, 23 (Miss.1988) (internal
citations omitted). Furthermore, the Mississippi Supreme Court has held that
positive annual reviews do not serve to generate a property interest in tenure.
Id. at 24 (citing Staheli v. Univ. of Miss., 854 F.2d, 121, 126 (5th Cir.1988)).
451 F.3d at 344-45.
Dr. Klingler’s prior employment at USM falls within the general rule stated by the
preceding authorities. No contract has been presented to the Court providing that USM
had to establish cause before declining to re-employ Dr. Klingler. Further, the Faculty
Handbook cannot be said to create a reasonable expectation of continued employment
for non-tenured faculty. “[T]he Board is under no legal obligation to renew the contract
of any non-tenured employee and may decline to do so for any reason.” (Faculty
Handbook [39-18] at § 3.11.5.) “[T]he annual employment contracts of non-tenured
faculty are renewable entirely at the discretion of the Board upon the recommendation
of the University President.” (Faculty Handbook [39-18] at § 3.11.6.) The Court’s
review of Policy & Bylaw No. 403.0102 of the Board of Trustees, pertaining to notice of
non-renewal of tenure track faculty, also fails to disclose any basis for Dr. Klingler’s
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legitimate expectation of re-employment. (See Doc. No. [35-4].) This provision merely
specifies that a non-renewal notice must be in writing and furnished to a tenure track
faculty member within a specified time period prior to the date of termination. Dr.
Lyman’s February of 2011 written notice to Dr. Klingler, advising that his employment at
USM would not be renewed following the conclusion of the 2011-12 academic year,
complied with this provision. (See Doc. No. [33-5].)
Dr. Klingler was not entitled to “a hearing when . . . [USM] declined to renew his
contract of employment”15 or “substantive protection. . . [from] arbitrary . . . government
action”16 given the absence of any protected property interest in his continued
employment at USM. Dr. Klingler’s “tenure-track” status fails to alter this result. See
Suddith, 977 So. 2d at 1170 (¶ 20) (“[T]he Mississippi Supreme Court has clearly stated
that non-tenured faculty, whether they be tenure-track or non-tenure track, do not have
a protected property interest in continued employment either by legislation or
regulations.”) (citations omitted). USM’s February of 2011 decision to limit the scope of
Dr. Klingler’s employment to academic research, while continuing to provide him with
salary and benefits,17 also fails to implicate the protections of the Due Process Clause.
Cf. DePree, 588 F.3d at 289 (affirming the district court’s ruling that a tenured professor
was not deprived of a protected property interest when he was given a full-time
research assignment and precluded from teaching and accessing the business school);
15
Roth, 408 U.S. at 578.
16
Hall, 712 So. 2d at 320 (¶ 31).
17
(See Doc. No. [33-6].)
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Mollaghan v. Varnell, 105 So. 3d 291, 304 n.32 (Miss. 2012) (finding plaintiff’s claim that
he was deprived of due process when he was removed as the head coach of the
women’s soccer team and reassigned to a teaching position to be without merit), cert.
denied, 2013 WL 1625136 (Oct. 7, 2013).
The principal authorities relied upon by Dr. Klingler in support of the existence of
a property right are inapposite. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Samuel v. Holmes, 138 F.3d 173 (5th Cir.
1998); Russell v. Harrison, 736 F.2d 283 (5th Cir. 1984). In Loudermill, an Ohio statute
created a property interest in continued employment by requiring “misfeasance,
malfeasance, or nonfeasance in office” for the dismissal of civil service employees. 470
U.S. at 538-39 (citing Ohio Rev. Code. Ann. § 124.34). In Samuel, a Louisiana statute
required “valid reasons” for the dismissal or discharge of non-tenured, probationary
school board employees. 138 F.3d at 176 (citing La. Rev. Stat. Ann. § 17:522). No
comparative Mississippi statute addressing the renewal of employment of non-tenured
faculty members has been brought to the Court’s attention. Protected property rights
were implicated in Russell when plaintiffs’ one-year employment contracts were
prematurely terminated. 736 F.2d at 285, 287. Dr. Klingler was not terminated prior to
the expiration of any employment contract. His employment ended upon the expiration
of his contract for the 2011-12 academic year,18 and USM was under no duty to reemploy him.
18
(See Doc. No. [33-5].)
-21-
The freedom to work and earn a living falls within the scope of the liberty
interests protected by the Due Process Clause. See Roth, 408 U.S. at 572. Thus, the
right to procedural due process is implicated when a governmental “employee is
discharged in a manner that creates a false and defamatory impression about him and
thus stigmatizes him and forecloses him from other employment opportunities.” Bellard
v. Gautreaux, 675 F.3d 454, 461 (5th Cir. 2012) (citation and internal quotation marks
omitted); see also Hall, 712 So. 2d at 322 (¶ 34) (“[W]here arbitrary and capricious
government action results in damage to a public employee’s reputation such as to
foreclose the employee’s future employment opportunities there may be a deprivation of
liberty.”). A claimant must show the following in order to establish a due process
violation for the denial of a name-clearing hearing:
(1) he was discharged; (2) stigmatizing charges were made against him in
connection with the discharge; (3) the charges were false; (4) he was not
provided notice or an opportunity to be heard prior to the discharge; (5) the
charges were made public; (6) he requested a hearing to clear his name; and
(7) the employer denied the request.
Bellard, 675 F.3d at 461-62.
Dr. Klingler’s allegation that his right to due process was violated in the absence
of a name-clearing hearing fails on the first, fourth, fifth and seventh of the abovequoted elements.19 “First, he was not terminated, but was non-renewed after being
allowed to finish his contractual term, thus failing to meet element (1).” Nichols, 669 F.
Supp. 2d at 696 (finding that the defendants were not constitutionally required to
19
No judgment is rendered as to Dr. Klingler’s ability to meet the remaining
elements.
-22-
provide the plaintiff with a name-clearing hearing).
The following circumstances, occurring prior to Dr. Klingler’s last day of
employment in May of 2012, preclude a finding in his favor on the fourth and seventh
required elements. On November 9, 2010, Dr. Klingler was advised in writing that he
was being placed on administrative leave due to “allegations of potential harm to
others.” (Doc. No. [32-5].) On December 6, 2010, Dr. Lipscomb met with Dr. Klingler
and his attorney and provided them with a copy of Mr. Hand’s statement, including
allegations that Dr. Klingler invaded the personal space of female graduate students
and stated on November 9 that “I have never shot a student and what that girl said does
not bother me, but I think about it and I think about it a lot.” (See Hand Statement [32-2]
at pp. 1-2; Klingler Dep. [39-1] 65:25-66:12, 73:4-18; Lipscomb Dep. [39-6] 64:17-25.)
On May 9, 2011, legal counsel for USM communicated to Dr. Klingler’s counsel the
availability of a global grievance hearing before the UAC, less two representatives from
Dr. Klingler’s college, with appeals available to the Provost and the President. (See
Doc. No. [34-2 at ECF p. 78].)20 On June 6, 2011, counsel for USM transmitted to Dr.
Klingler’s counsel numerous documents regarding: (a) the incident involving Mr. Hand;
(b) Dr. Klingler posting Mr. Hand’s statement and related matters on Facebook; and, (c)
a complaint from a former graduate student to USM Police concerning her interactions
with Dr. Klingler at Forrest General Hospital on December 30, 2010. (See Doc. No. [342 at ECF pp. 87-125].) Dr. Klingler’s counsel subsequently reviewed the documents
20
This was subsequent to the transmission of Dr. Klingler’s February of 2011 formal
grievance notice, including a demand for “a name clearing hearing.” (Doc. No. [33-8] at
p. 2.)
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and advised that Dr. Klingler would not be attending the subject hearing because, inter
alia, “[t]he end result is that the deck is stacked against Dr. Klingler.” (Doc. No. [34-2 at
ECF p. 126].) Dr. Klingler was still afforded the opportunity to state his case at a
grievance conference before Dr. Norton on June 22, 2011, pursuant to section 12.2.4 of
the Faculty Handbook. However, Dr. Klingler and his counsel declined to attend the
conference because they considered it “a waste of time and money . . . .” (Doc. No.
[35-2].) Dr. Klingler’s multifaceted grievance was subsequently heard on paper by Dr.
Norton, the CAC, the UAC, and Interim Provost Dr. Wiesenburg. (See Doc. Nos. [34-3],
[34-4], [34-5], [43-1]; Faculty Handbook [39-18] §§ 12.2.4, 12.2.5, 12.2.6.) No
reasonable jury could conclude that Dr. Klingler was deprived of notice of the charges
against him or the opportunity to contest those charges and clear his name under this
set of facts.
Lastly, no showing has been made that Dr. Saunders or Dr. Lyman made the
charges against Dr. Klingler “public in any official or intentional manner . . . .” Nichols,
669 F. Supp. 2d at 696 (citation omitted). Respondeat superior liability is unavailable
under § 1983. See Oliver, 276 F.3d at 742 (citations omitted). Thus, neither Dr.
Saunders nor Dr. Lyman can be held liable for any other USM employee’s public
disclosure of the subject charges. Cf. Bellard, 675 F.3d at 462 (“Because this claim is
against the Sheriff in his individual capacity . . . [the plaintiff] must show that the Sheriff
personally publicized the defamatory statements.”); Nichols, 669 F. Supp. 2d at 697
(refusing to assign “the duty of rumor control” to the defendants). Furthermore, absent
from the summary judgment record is any evidence of Dr. Saunders or Dr. Lyman
creating or “implementing a policy that” was “the moving force” behind the public
-24-
disclosure of the subject charges. Oliver, 276 F.3d at 742 (citing Grandstaff v. City of
Borger, 767 F.2d 161, 169, 170 (5th Cir. 1985)). The Court would also be remiss to
overlook Dr. Klingler’s Facebook postings of Dr. Blackwell’s letter placing him on
administrative leave and Mr. Hand’s fairly disparaging statement. (See Doc. Nos. [331], [33-2].) Dr. Klingler understood that a Facebook “friend” could forward his posts to
anyone of his or her choosing. (See Klingler Dep. [39-1] 74:19-75:1.) Self-publication
fails to satisfy the essential element of public disclosure in the Fifth Circuit. See Bellard,
675 F.3d at 462; Hughes v. City of Garland, 204 F.3d 223, 228 (5th Cir. 2000). In sum,
Dr. Klingler’s inability to make a sufficient showing on several of the essential elements
of his claim for denial of a name-clearing hearing mandates summary judgment against
him. See Brown, 663 F.3d at 766.
It is doubtful that any of Dr. Klingler’s due process claims, substantive or
procedural, survive the preceding findings. Nonetheless, the Court will separately
consider Dr. Klingler’s allegations of biased decision makers and contract-property
rights stemming from employment handbooks assuming, arguendo, that these
allegations may be construed to escape the foregoing analysis.
The Fifth Circuit has recognized that “Mississippi courts have held that employee
manuals become part of the employment contract, creating contract rights to which
employers may be held, such as Dr. Whiting’s right to the procedures outlined in the
handbooks.” Whiting, 451 F.3d at 345-46 (citing Robinson v. Bd. of Trs. of E. Cent.
Junior Coll., 477 So. 2d 1352, 1353 (Miss. 1985); Bobbitt v. Orchard Dev. Co., 603 So.
2d 356, 361 (Miss. 1992)). Dr. Klingler focuses on this statement in arguing that the
Faculty Handbook [39-18] and Employee Handbook [39-20] were incorporated into his
-25-
written contract of employment and gave rise to protected property interests.21 Thus,
according to Dr. Klingler, the Due Process Clause was implicated when he was denied
tenure track evaluations specified in the Faculty Handbook, and when his grievance
proceedings exceeded the time lines specified in the Faculty Handbook and Employee
Handbook.
The problem for Dr. Klingler is that “[it] matters what the handbook actually says”
under Mississippi law. Suddith, 977 So. 2d at 1171-72 (¶¶ 25-27) (affirming the
dismissal of due process claims remarkably similar to those asserted by Dr. Klingler).
Both the Faculty Handbook and Employee Handbook contain disclaimers advising that
the handbook provisions do not give rise to contractual rights.22 The Mississippi
Supreme Court has consistently held that employee handbooks expressly disclaiming
the existence of a contract fail to give rise to contractual obligations between employers
and employees.23 “When there is something in the employee handbook disclaiming a
21
Dr. Klingler ignores the Fifth Circuit’s actual holding on this issue: “[E]ven if Dr.
Whiting’s contractual rights are sufficient to constitute a property interest warranting due
process protection, it is not clear that she has adequately alleged any sort of
deprivation. Indeed, reviewing the history of her tenure application suggests that she
has been afforded the processes guaranteed her.” Id. at 346 (emphasis added).
22
“Although the Faculty Handbook is not a comprehensive, self-contained policy
document, nor is it a contract of employment, it does provide guidance for the
relationships between the University and the faculty.” (Faculty Handbook [39-18 at ECF
p. 1]) (second emphasis added). “These policies are intended only to be guidelines for
employment at USM, and they do not give rise to any contractual rights.” (Employee
Handbook [39-20 at ECF p. 2].)
23
See, e.g., Byrd v. Imperial Palace of Miss., 807 So. 2d 433, 437-38 (¶¶ 17-18)
(Miss. 2001); Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 848
(¶¶ 7-12) (Miss. 2001); Hartle v. Packard Elec., a Div. of Gen. Motors Corp., 626 So. 2d
106, 109-10 (Miss. 1993).
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contract of employment, the rule developed in Bobbitt does not apply.” Lee, 797 So. 2d
at 848 (¶ 11) (citation and internal quotation marks omitted). Therefore, the Defendants’
alleged failures to follow certain provisions in the Faculty Handbook [39-18] and
Employee Handbook [39-20] do not amount to a breach of contract, resulting in the
deprivation of a protected property interest.
Even if the subject handbooks gave rise to enforceable contractual obligations,
Dr. Klingler still had no protected property interest in continued employment at USM.
“Written tenure policies do not, of themselves, create or confer an expectation of
continued employment.” Whiting v. Univ. of S. Miss., 62 So. 3d 907, 919 (¶ 29) (Miss.
2011)24 (citing Wicks, 536 So. 2d at 23). The “grant of tenure is within the sole discretion
of the Board” of Trustees. Id.; see also Whiting, 451 F.3d at 346 (“[T]he final decision
on tenure remains at the discretion of the Board of Trustees, notwithstanding the results
of annual and third-year evaluations.”). Furthermore, the Board of Trustees “is under no
legal obligation to renew the contract of any non-tenured employee and may decline to
do so for any reason.” (Faculty Handbook [39:18] at § 3.11.5.) Since Dr. Klingler had
no legitimate expectation of continued employment beyond the expiration of his oneyear employment contract, his reliance on USM’s tenure track policies for the existence
of a property right is without merit.25
24
This decision addressed Dr. Whiting’s state law claims after the Fifth Circuit
affirmed the district court’s dismissal of her federal claims in Whiting, 451 F.3d 339.
25
Cf. Whiting, 451 F.3d at 346 (rejecting Dr. Whiting’s argument “that the tenure and
promotion procedures [in the Faculty Handbook] create a de facto tenure program such
that she has a protected interest in her continued employment”); Suddith, 977 So. 2d at
1172 (¶ 26) (finding that the Faculty Handbook’s reference to a “Third Year Review”
during the six-year tenure track schedule failed to establish “a tenure-track employee’s
-27-
Any alleged infractions of the timing deadlines for Dr. Klingler’s grievance
proceedings similarly fail to reach constitutional significance. See Mollaghan, 105 So.
3d 291. In Mollaghan, two former USM soccer coaches alleged violations of their rights
to procedural due process due to USM’s refusal to provide them with a hearing and/or
investigation on their grievances in accordance with USM’s staff handbook. Id. at 30304 (¶¶ 29-30). The Mississippi Supreme Court assumed arguendo that the coaches
were entitled to a hearing on their grievances, but found no violation of due process
since the coaches’ employment contracts were not prematurely terminated and both
coaches were fully compensated under their contracts. Id. at 304 (¶¶ 30-31). As
neither coach suffered any property loss under his contract, neither could “show the
deprivation of a property right or that he suffered any compensable damage as the
result of his alleged deprivation of procedural due process.” Id. at (¶ 31). Here too, Dr.
Klingler cannot show the deprivation of a property right since he was fully compensated
through the expiration of his final employment contract, terminating in May of 2012.
(See Klingler Dep. [39-1] 45:18-24, 119:11-18.)
Dr. Klingler also contends that he was deprived of the right to unbiased decision
makers at USM. Constitutional due process requires fair and impartial decision makers.
See Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 511 (5th Cir. 2001) (citing In
re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)). This
requirement applies in proceedings before courts, administrative agencies and
government hearing officers. See Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047,
entitlement to continued employment for the amount of time necessary to reach these
stages of the tenure process”).
-28-
1052 (5th Cir. 1997) (citing Gibson v. Berryhill, 411 U.S. 564, 569, 93 S. Ct. 1689, 36 L.
Ed. 2d 488 (1973)). The Supreme Court has provided the following examples of
constitutionally unacceptable decision makers: (1) a decision maker who has a
pecuniary interest in the outcome of the case; (2) a decision maker who has been the
target of personal abuse or criticism from the claimant; and (3) a decision maker who
both investigates and adjudicates complaints. Ford Motor Co., 264 F.3d at 511-12
(citations omitted). Dr. Klingler’s allegation that the “Defendants ‘convicted’ . . . [him]
before any hearing was held or provided” appears to touch upon the third class of
decision makers. (Pl.’s Mem. Brief in Supp. of Resp. to Mot. for SJ [40] at p. 25.) As to
this class, Dr. Klingler “must overcome two strong presumptions: (1) the presumption of
honesty and integrity of the adjudicators; and (2) the presumption that those making
decisions affecting the public are doing so in the public interest.” Ford Motor Co., 264
F.3d at 512 (citing Valley, 118 F.3d at 1052-53.) Bias may be inferred if “evidence is
presented to indicate that a hearing officer’s mind was irrevocably closed.” Baran v.
Port of Beaumont Navigation Dist. of Jefferson County Tex., 57 F.3d 436, 446 (5th Cir.
1995) (citations omitted). “[M]ere speculation and tenuous inferences” are insufficient to
establish unconstitutional bias. Tex. Faculty Ass’n v. Univ. of Tex. at Dallas, 946 F.2d
379, 388 (5th Cir. 1991) (citing Duke v. N. Tex. State Univ., 469 F.2d 829, 834 (5th Cir.
1972)).
No evidence has been presented to the Court indicating that Dr. Saunders and
Dr. Lyman’s minds were irrevocably closed prior to their respective employment
decisions. The summary judgment record shows that Dr. Saunders and Dr. Lyman had
minimal communications concerning Dr. Klingler, and that Dr. Saunders was not
-29-
involved in the initial decision to remove Dr. Klingler from campus. (See Saunders Dep.
[39-4] 8:22-9:17, 20:12-14, 23:20-25:9; Lyman Dep. [39-5] 8:17-21, 19:12-22, 38:2-21.)
Dr. Lyman testified that around February, 2011, he advised Dr. Saunders “of the broad
outlines of the case”: that there was an issue with a faculty member who made a
statement that was investigated as a threat; that “we’re moving forward on a nonrenewal of his contract”; and, that the faculty member had been banned from campus.
(Lyman Dep. [39-5] 38:3-21.) Dr. Saunders recalled being told by Dr. Lyman “that there
was complaint from a student that there was -- and this is my memory -- that the student
felt threatened and unsafe.” (Saunders Dep. [39-4] 24:22-25.) Based on this record, it
does not appear that Dr. Saunders actually investigated the allegations regarding Dr.
Klingler, and only speculation and conjecture support the inference that Dr. Saunders
irreversibly made up her mind regarding the allegations prior to her June of 2012
determination that Dr. Klingler’s grievance lacked merit. (See Doc. No. [34-6].)
It does appear that Dr. Lyman was involved in the investigation of the allegations
against Dr. Klingler and the decision to remove him from campus on November 9, 2010.
(See Lyman Dep. [39-5] 27:5-10, 29:4-13.) Further, Dr. Lyman indicated at deposition
that he made the February of 2011 decision to limit Dr. Klingler’s employment to
academic research and not to renew his employment beyond the 2011-12 academic
year. (See Lyman Dep. [39-5] 50:17-51:2.) However, the Court finds Dr. Klingler’s
conclusory allegations and unsubstantiated assertions of bias on the part of Dr. Lyman
insufficient to overcome “the presumption of [Dr. Lyman’s] honesty and integrity” and
the presumption that Dr. Lyman’s decisions were made “in the public interest.” Ford
Motor Co., 264 F.3d at 512; see also Oliver, 276 F.3d at 744 (“Conclusional allegations
-30-
and denials, speculation, improbable inferences, unsubstantiated assertions, and
legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial.”). Moreover, Dr. Lyman cannot be said to have made an
irrevocable determination about the November 9 incident involving Mr. Hand and Dr.
Klingler on that date given his testimony that by February of 2011, he had determined
there was no real threat of violence and that Dr. Klingler’s teaching duties were not
being renewed in large part because of his conduct between November, 2010 and
February, 2011. (See Lyman Dep. [39-5] 48:7-19, 76:25-77:8.) Dr. Lyman also testified
that he disagreed with Dr. Norton and Dr. Blackwell’s preferences for the immediate
termination of Dr. Klingler, which militates against any conclusion that he was somehow
out to get Dr. Klingler and prejudiced against him. (See Lyman Dep. [39-5] 50:16-51:2.)
For all the foregoing reasons, Dr. Klingler’s due process claims against Dr.
Saunders and Dr. Lyman in their individual capacities will not proceed to trial.
b.
Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that no
State shall “deny to any person within its jurisdiction the equal protection of the law.”
U.S. Const. amend. XIV, § 1. Dr. Klingler contends that fact issues exist as to the
difference in the Defendants’ treatment of him and former Athletic Director Jeff
Hammond, who purportedly made threats of violence in the workplace. Dr. Klingler
does not allege that he was discriminated against because of his membership in a
specific group or class.
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The Court finds that Dr. Klingler is, in essence, asserting a class-of-one equal
protection claim: “a claim that the State treated an employee differently from others for
a bad reason, or for no reason at all”. Engquist v. Or. Dep’t of Agric., 553 U.S. 591,
606, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). In Engquist, the Supreme Court held
that such a claim has no application in the context of public employment. Id. at 598.
The Court explained:
[W]e are guided, as in the past, by the "common-sense realization that
government offices could not function if every employment decision became
a constitutional matter." Connick, supra, at 143, 103 S.Ct. 1684. If, as
Engquist suggests, plaintiffs need not claim discrimination on the basis of
membership in some class or group, but rather may argue only that they
were treated by their employers worse than other employees similarly
situated, any personnel action in which a wronged employee can conjure up
a claim of differential treatment will suddenly become the basis for a federal
constitutional claim. Indeed, an allegation of arbitrary differential treatment
could be made in nearly every instance of an assertedly wrongful
employment action—not only hiring and firing decisions, but any personnel
action, such as promotion, salary, or work assignments—on the theory that
other employees were not treated wrongfully. See 478 F.3d, at 995.
Id. at 607-08. Engquist requires the dismissal of Dr. Klingler’s claim of unequal
treatment in state government employment.
3.
Injunctive Relief
Dr. Klingler argues that two forms of injunctive relief are available against USM
and its officers: (1) the reinstatement of his employment or, at a minimum, (2) the
provision of a due process name-clearing hearing. The Supreme Court has stated that
“a state official in his or her official capacity, when sued for injunctive relief, would be a
person under § 1983 because ‘official-capacity actions for prospective relief are not
treated as actions against the State.’” Will, 491 U.S. at 71 n.10 (citations omitted).
However, § 1983 only affords a remedy for the violation of federal rights. See White,
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660 F.2d at 683. The Court has found that there are no issues for trial as to the alleged
violation of Dr. Klingler’s federally protected rights. As a result, neither monetary nor
injunctive relief is available to Dr. Klingler under § 1983. Cf. Dooley v. Fort Worth Indep.
Sch. Dist., 686 F. Supp. 1194, 1200 (N.D. Tex. 1987) (“Absent a violation of
constitutional rights, section 1983 provides no independent basis for recovery or
injunctive relief.”), aff’d, 866 F.2d 1418 (5th Cir. 1989).
C.
State Law Claims26
Defendants contend that they “are entitled to judgment as a matter of law on all
state law claims presented by the Plaintiff.” (Dfs.’ Mem. Brief in Supp. of Mot. to
Dismiss/SJ [36] at p. 12.) Defendants argue that there was no breach of contract since
USM complied with all of its contractual obligations. Defendants further raise certain
protections available under the Mississippi Tort Claims Act (“MTCA”), Miss. Code Ann.
§§ 11-46-1 to -23, with respect to Dr. Klingler’s remaining allegations of intentional
infliction of emotional distress, negligent infliction of emotional distress, and breach of
implied contract.
The “MTCA provides the exclusive civil remedy for tort actions against the state,
26
Although Dr. Klingler’s federal claims are no longer viable, the Court exercises its
discretion to retain supplemental jurisdictional over his state law claims in order to rule
on summary judgment. See 28 U.S.C. § 1367. Dr. Klingler has not raised any objection
to the Court ruling on his state law claims in the event of the dismissal of his federal
causes of action. Further, the late stage of this proceeding warrants the retention of
jurisdiction in this forum. See Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554
F.3d 595, 602 (5th Cir. 2009) (“Our case law is clear that when a district court declines
to exercise jurisdiction over remaining state law claims following the dismissal of all
federal-law claims and remands a suit after investing a significant amount of judicial
resources in the litigation . . . , that court has abused its discretion under 28 U.S.C. §
1367.”) (citations omitted).
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its political subdivisions, and its employees.” City of Jackson v. Harris, 44 So. 3d 927,
932 (¶ 23) (Miss. 2010) (citing Miss. Code Ann. § 11-46-7(1)). The Mississippi
Supreme Court has held that a claim for breach of an implied contract falls within the
scope of the MTCA, while a claim for breach of an express contract does not. See
Weible v. Univ. of S. Miss., 89 So. 3d 51, 60 (¶ 25) (Miss. Ct. App. 2011) (citing City of
Jackson v. Estate of Stewart ex rel. Womack, 908 So. 2d 703, 710-11 (¶¶ 35-36) (Miss.
2005)). The Court will separately address Dr. Klingler’s express and implied contract
claims in accordance with this dichotomy.
Governmental employees, such as Dr. Saunders and Dr. Lyman, may be sued in
their official capacity under the MTCA, “but no employee shall be held personally liable
for acts or omissions occurring within the course and scope of the employee’s duties.”
Miss. Code Ann. § 11-46-7(2). A governmental employee shall not be considered to
have acted “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.” Id. “The Mississippi Supreme Court has held that torts which
require proof of malice as an essential element are excluded from the MTCA . . . .”
Weible, 89 So. 3d at 64 (¶ 40) (considering the plaintiff’s intentional infliction of
emotional distress claim to fall outside the scope of the MTCA, and citing Zumwalt v.
Jones County Board of Supervisors, 19 So.3d 672, 688-89 (¶¶ 83-84, 86) (Miss. 2009),
which found that the MTCA did not apply to a claim for tortious interference with
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business relations).27 Dr. Klingler’s intentional infliction of emotional distress claim
includes an allegation of malice,28 and such a claim may be predicated on behavior that
“is malicous, intentional, willful, wanton, grossly careless, indifferent or reckless.”
Franklin Collection Serv., Inc. v. Kyle, 955 So. 2d 284, 290 (¶ 20) (Miss. 2007)
(emphasis added; citation omitted). Therefore, this claim will be considered outside of
the MTCA. The remaining alleged tort of negligent infliction of emotional distress
indisputably falls within the scope of the MTCA.
1.
Breach of Express Contract
A plaintiff must prove the following essential elements in order to prevail on a
breach of contract claim: (1) the existence of a valid and binding contract; and (2) that
the defendant has broken or breached the contract. Bus. Commc’ns, Inc. v. Banks, 90
So. 3d 1221, 1224-25 (¶¶ 10-11) (Miss. 2012). USM paid Dr. Klingler’s salary and
provided him with benefits through the expiration of his final employment contract,
terminating in May of 2012. (See Klingler Dep. [39-1] 45:18-24, 119:11-18.) No
contract has been presented to the Court indicating that USM was precluded from
limiting Dr. Klingler’s duties to academic research during his employment. The Faculty
27
See also Mawson v. Univ. of Miss. Med. Ctr., No. 3:11cv574, 2012 WL 6649323,
at *5 (S.D. Miss. Dec. 20, 2012) (holding that UMMC was immune from the plaintiff’s
intentional infliction of emotional distress claim since it was specifically predicated on
malicious conduct).
28
“Irrespective of the breaches of contract, the conduct of Defendants, in and of
itself, independent of the contractual situation, was so egregious, malicious, outrageous,
and venal and/or showed a callous indifference to the consequences that the tort of
intentional infliction of emotional distress has been inflicted upon the Plaintiff.” (Compl.
[32-9] at ¶ 33) (emphasis added).
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Handbook [39-18] and Employee Handbook [39-20], which Dr. Klingler principally relies
on for his breach of contract allegations, contain disclaimers advising that the handbook
provisions do not give rise to contractual rights. Mississippi law is clear that reliance on
an employment manual containing a valid disclaimer in support of a breach of contract
claim is misplaced. See, e.g., Byrd, 807 So. 2d at 437-38 (¶¶ 17-18); Lee, 797 So. 2d
at 848 (¶¶ 7-12); Hartle, 626 So. 2d at 109-10. For all of these reasons, there is no
genuine issue of material fact as to any alleged breach of contract and summary
judgment against Dr. Klingler is due on this claim for relief.
2.
Intentional Infliction of Emotional Distress
An action for intentional infliction of emotional distress requires the defendant’s
“conduct to be so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Raiola v. Chevron U.S.A., Inc., 872 So. 2d 79, 85 (¶ 23)
(Miss. Ct. App. 2004) (citation omitted). Liability will not attach for mere insults, threats,
indignities, petty oppression, annoyances, or other trivialities. Jones v. Mullen, 100 So.
3d 490, 499 (¶ 40) (Miss. Ct. App. 2012) (citing Clark v. Luvel Dairy Prods., Inc., 821
So. 2d 827, 831 (¶ 9) (Miss. Ct. App. 2001)). The claimant must show that the
defendant intentionally and maliciously sought to do him harm. Sumler v. East Ford,
Inc., 915 So. 2d 1081, 1089 (¶ 26) (Miss. Ct. App. 2005) (citing Morgan v. Greenwaldt,
786 So. 2d 1037 (¶ 24) (Miss. 2001)). Furthermore, employment disputes will not
ordinarily support an emotional distress claim. Lee, 797 So. 2d at 851 (¶ 24) (citations
omitted). “Only in the most unusual cases does the conduct move out of the ‘realm of
an ordinary employment dispute’ into the classification of ‘extreme and outrageous,’ as
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required for the tort of intentional infliction of emotional distress.” Brown v. Inter-City
Fed. Bank for Savings, 738 So. 2d 262, 265 (¶ 9) (Miss. Ct. App. 1999) (citing Prunty v.
Ark. Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994)).
Viewing the facts and resulting inferences in Dr. Klingler’s favor, while giving the
pleadings and arguments of Dr. Klingler’s counsel the limited weight they are due,29 the
Court determines that no reasonable jury could find that Dr. Saunders or Dr. Lyman
engaged in conduct so outrageous and extreme in character as to be intolerable in a
civilized society. At bottom, this is an ordinary employment dispute, albeit in a public
setting. Thus, this claim will also be dismissed.
3.
Negligent Infliction of Emotional Distress and Breach of
Implied Contract
Dr. Saunders and Dr. Lyman contend that they are immune from liability under
section 11-46-9(1)(d) of the MTCA “since their actions involved an act of choice or
judgment involving the important public policy of providing students in the state
university with the best possible faculty member.” (Defs.’ Mem. Brief in Supp. of Mot. to
Dismiss/SJ [36] at p. 12.) Section 11-46-9(1)(d) exempts governmental entities and
their employees acting within the course and scope of their employment from liability for
any claim founded “upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a governmental entity or
29
It is well established that arguments of counsel and unsworn allegations in the
pleadings fail to preclude summary judgment. See, e.g., Nettles v. Travelers Prop. Cas.
Ins. Co., 375 F. Supp. 2d 489, 492 (S.D. Miss. 2005); Roberts v. Walthall County Gen.
Hosp., 96 F. Supp. 2d 559, 561 (S.D. Miss. 2000), aff'd, 240 F.3d 1075 (5th Cir. 2000).
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employee thereof, whether or not the discretion be abused”. Miss. Code Ann. § 11-469(1)(d). Several authorities have found section 11-46-9(1)(d) applicable to employment
decisions made by government officials. See, e.g., Patton v. Hinds County Juvenile
Det. Ctr. (Henley-Young), No. 3:10cv138, 2011 WL 2912897, at *6 (S.D. Miss. July 18,
2011) (“Employment decisions, like that about which Patton complains, are classic
discretionary functions . . . since they require ‘personal deliberation, decision and
judgment.’”); DePree, 2008 WL 4457796, at *9 (“An employment decision is a classic
discretionary function.”); Suddith, 977 So. 2d at 1179 (¶¶ 48-49) (holding that the
decision to offer a professor a one-year contract of employment, as opposed to a tenure
track position, was a discretionary act immune from liability under the MTCA).
The Court discerns no argument, persuasive or otherwise, from Dr. Klingler as to
the inapplicability of section 11-46-9(1)(d) to his negligent infliction of emotional distress
and breach of implied contract causes of action. No showing has been made that Dr.
Saunders and Dr. Lyman were acting outside the course and scope of their employment
when they made their respective decisions regarding Dr. Klingler.30 Further, these
Defendants’ decisions required the exercise of judgment (as opposed to the
straightforward execution of a statutory mandate) and involved the “public policy” of
providing students at USM “with the best faculty members possible.” Suddith, 977 So.
2d at 1179 (¶ 49). Consequently, all of the Defendants are immune from these claims
under the MTCA.
III. CONCLUSION
30
This circumstance precludes any individual liability pursuant to section 11-46-7(2).
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The Court concludes that there is no genuine issue as to any material fact and
the Defendants are entitled to judgment as a matter of law on all of Dr. Klingler’s claims.
IT IS THEREFORE ORDERED AND ADJUDGED that the Defendants’ Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment [31] is granted and
Plaintiff’s Complaint is dismissed with prejudice. Any other pending motion is denied as
moot. A separate judgment will be entered in accordance with Rule 58 of the Federal
Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 5th day of December, 2013.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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