Kermode v. University of Mississippi Medical Center et al

Filing 95

ORDER granting in part and denying in part 67 Motion for Summary Judgment; denying 86 Motion for Partial Summary Judgment; granting 89 Motion to Strike as set out in the order. The Court notes that the parties cancelled the previously schedule d settlement conference. The parties are hereby ordered to mediate this matter before Magistrate Judge Ball within thirty days of this Order. If settlement is not reached, the parties shall contact the Court's courtroom deputy to set the matter for pretrial conference. Signed by District Judge Daniel P. Jordan III on September 15, 2011. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JOHN C. KERMODE, PH.D.

PLAINTIFF

VS.

CIVIL ACTION NO.: 3:09cv584-DPJ-FKB

UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, ET AL.

DEFENDANTS

ORDER
This employment dispute is before the Court on Defendants’ Motion for Summary
Judgment [67]; Plaintiff’s Cross-Motion for Summary Judgment [86]; and Defendants’ Motion
to Strike [89]. The Court, having fully considered the premises, finds that Defendants’ Motion
for Summary Judgment is granted in part and denied in part; their Motion to Strike is granted;
and Plaintiff’s Motion for Summary Judgment is denied.
I.

Facts and Procedural History
Plaintiff John Kermode was a tenured professor at the University of Mississippi Medical

Center (UMMC) in Jackson, Mississippi. He brings a wide variety of state and federal claims
related to the termination of his employment in 2008.
Kermode’s dismissal flowed from his dispute with a graduate student, Sang Won Park,
who was Kermode’s laboratory mentee. The following facts are not disputed in this record:
Kermode invited Park to attend an academic conference with him—the Gordon Research
Conference—that would include the leading players in Park’s chosen field, but Kermode failed
to inform his wife; when the spouse discovered the plans, she became “very angry” and asked to
meet Park in a parking lot after a dinner party; Kermode thereafter withdrew Park’s invitation to
attend the Gordon Research Conference, prompting Park’s decision to leave Kermode’s lab and
sever the professional relationship.

Although the parties dispute some details, there is likewise no dispute that Kermode
made numerous attempts to change Park’s mind, that she refused, that she asked not to be
contacted again, and that Kermode made at least one additional attempt after what he perceived
to be Park’s final decision. During this period, Kermode met with Defendant Jerry Farley, who
was the acting head of Kermode’s department, regarding Park . Kermode’s testimony and
affidavit demonstrate that Kermode strongly disagreed with Park’s decision to leave and sever
the professional relationship. He also believes Farley should have done more to resolve the
dispute and return Park to Kermode’s lab.
In August 2008, Farley brought the issue to the attention of Interim Director of Human
Resources James Dorn and Assistant Vice Chancellor Helen Turner. The decision was made to
immediately terminate Kermode’s employment, and he received a letter so stating. But the next
day, Kermode was informed that his employment was suspended with pay pending a hearing. A
hearing was conducted before the Academic Freedom and Faculty Responsibility Committee
(the “Committee”), where harassment was unanimously found but termination was viewed as
overly harsh. On December 12, 2008, Vice Chancellor Dan Jones rejected the Committee’s
recommendation and followed the recommendation from Turner and others to terminate
Kermode’s employment. Kermode appealed to the Institution of Higher Learning (IHL) which
declined the appeal.
On September 25, 2009, Kermode sued IHL, UMMC and Farley in his individual and
official capacities. In his Amended Complaint, Kermode added official capacity claims against
Dorn, Jones and Turner. Kermode’s suit includes federal causes of action under 42 U.S.C.
§§ 1983, 1985, 1986, and state-law claims for breach of contract, breach of the duty of good faith

2

and fair dealing, intentional infliction of emotional distress (IIED), invasion of privacy, tortious
interference with a contract, defamation, and civil conspiracy.
In July 2010, the Court dismissed certain claims against Farley based on qualified
immunity and immunity under the Mississippi Tort Claims Act (MTCA), Mississippi Code
Annotated section 11-46-7(2). Three months later, in October 2010, the Court dismissed all
claims against IHL as waived and otherwise blocked by IHL’s Eleventh Amendment immunity.
All remaining Defendants now seek summary judgment, and Kermode filed a delinquent crossmotion for summary judgment which Defendants moved to strike. The Court has personal and
subject-matter jurisdiction and is prepared to rule.
II.

Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil

Procedure when evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.”1 The party moving for
summary judgment “bears the initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.”2 The nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.’”3 In
1

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

2

Id. at 323.

3

Id. at 324 (citation omitted).
3

reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but
only when . . . both parties have submitted evidence of contradictory facts.”4 When such
contradictory facts exist, the court “may not make credibility determinations or weigh the
evidence.”5
Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments
have never constituted an adequate substitute for specific facts showing a genuine issue for trial.6
Moreover, “Rule 56 does not impose upon the district court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment.”7 Finally, Kermode
observes that many of the disputed emails in the record have not been authenticated. Generally
speaking, “unauthenticated documents are not competent summary judgment evidence.”8
Despite Kermode’s argument, Defendants made no attempt to remedy the issue in reply.
Nevertheless, Kermode’s own evidence, and the authenticated records in Defendants’
submissions, are sufficient to support these rulings.

4

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

5

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

6

TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v.
Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d at 1075.
7

Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 379–80 (5th Cir. 2010) (“We have
explained that Rule 56 does not impose upon the district court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment.”) (citations and
quotations omitted).
8

Montes v. Ransom, 219 F. App’x 378, 380 (5th Cir. 2007); see also Duplantis v. Shell
Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991) (holding that documents submitted as
summary- judgment evidence must be authenticated).
4

III.

Analysis
A.

Housekeeping Matters

Although Kermode urges the Court to reject Defendants’ motion in its entirety, he does
not address a number of defenses and therefore waives those issues.9 Other defenses receive
passing and clearly erroneous objection. Full-blown analysis of these matters is unnecessary.
1.

IHL

Much of Kermode’s Response [84] relates to state-law claims against IHL, but IHL has
already been dismissed.10
2.

UMMC

UMMC is likewise entitled to dismissal. The “Eleventh Amendment bars private citizens
from bringing suit against a state in federal court, unless the suit falls within the narrow
exception articulated by the Supreme Court in Ex Parte Young.”11 UMMC is an arm of the state
that has not waived its Eleventh Amendment immunity.12 And contrary to Kermode’s argument,
the Ex Parte Young exception applies to claims against individuals in their official capacities, not
claims against the state or an arm of the state.13 Ex Parte Young is likewise inapplicable to

9

Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (finding waiver).

10

Oct. 12, 2010 Order [45].

11

McKinley v. Abbott, 643 F.3d 403, 405 (5th Cir. 2011) (citing K.P. v. LeBlanc, 627 F.3d
115, 124 (5th Cir. 2010) (citing Ex parte Young, 209 U.S. 123 (1908))).
12

McGarry v. Univ. of Miss. Med. Ctr., 355 F. App’x 853, 856 (5th Cir. 2009) (affirming
that UMMC is “an arm of the University of Mississippi, is an agency of the state and entitled to
Eleventh Amendment immunity absent waiver or abrogation”) (citations omitted).
13

Ex parte Young, 209 U.S. 123 (1908); see Brennan v. Stewart, 834 F.2d 1248, 1252 (5th
Cir. 1988).
5

Kermode’s state-law claims,14 and UMMC is not a “person” for purposes of Kermode’s federal
claims under 42 U.S.C. § 1983.15 All claims against UMMC are therefore dismissed.
3.

Defendants Dorn, Jones, and Turner

Kermode sued Defendants Dorn, Jones, and Turner in their official capacities only.16
Defendants contend that they are entitled to dismissal of all claims because they are not
“persons” under § 198317 and because they enjoy Eleventh Amendment immunity in their
official capacities.18 The arguments are only partially correct.
Individual defendants sued for monetary damages in their official capacities are not
“persons” under § 1983.19 But “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.”20 Similarly, officials receive
Eleventh Amendment immunity from suit in federal court as to all unwaived federal claims

14

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984) (holding that Ex
parte Young fiction applies only to violations of federal law by state officials); see also
McKinley, 643 F.3d at 406 (affirming Eleventh Amendment immunity for state-law claims).
15

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (“Section 1983 provides a
federal forum to remedy many deprivations of civil liberties, but it does not provide a federal
forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties.”)
16

Am. Compl.[32] ¶¶ 5–7.

17

Defs.’ Mem [68] at 24.

18

Defs.’ Reply [81] at 2.

19

Will, 491 U.S. at 71 (barring suits for money damages under § 1983 against states and
state officials in their official capacity).
20

Id. at 71 n.10 (citation and internal quotation marks omitted).
6

except those for prospective-injunctive relief.21 Finally, state-law claims against officials in their
official capacities are barred by the Eleventh Amendment.22
Thus, Defendants Dorn, Jones, and Turner are entitled to dismissal of all state-law claims
asserted against them in Counts III, IV, V and VIII and all federal claims found in Counts I and
II other than those for prospective-injunctive relief.
4.

Counts I and II

Counts I and II of the Amended Complaint offer overlapping constitutional claims with
the addition of an Equal Protection claim in Count II. But because such claims must be pursued
under § 1983, the Court focuses on Count II in which Kermode expressly invokes § 1983.23
Defendants contend that all § 1985 and § 1986 claims for monetary damages against UMMC and
its employees in their official capacities must be dismissed because such parties are not
“persons” under those acts and they are entitled to immunity under the Eleventh Amendment.
Kermode’s responsive memorandum acknowledges but fails to respond to these arguments.
Plaintiff’s claims for monetary relief under §§ 1985 and 1986 are waived.24 Finally, the Equal
Protection claim must be dismissed because it is not reflected in Kermode’s Response or

21

Pennhurst State Sch. & Hosp., 465 U.S. at 103.

22

Id. at 106.

23

See Neyland v. Henley-Young Juvenile Justice Ctr., No. 3:09cv520–DPJ–FKB, 2011
WL 1980276, at *3 (S.D. Miss. May 20, 2011) (recognizing that claims for constitutional
violations must be brought under § 1983).
24

Defendants’ arguments are otherwise meritorious. See Baxter v. Louisiana, 2003 WL
22175990, Civ. A. 03-2014, at *1 n.6 (E.D. La. Sept. 19, 2003).
7

Memorandum,25 and “the class-of-one theory of equal protection has no application in the public
employment context.”26
5.

IIED

In Count IV of his Amended Complaint, Kermode asserts a cause of action for IIED as to
all Defendants. His responsive memorandum makes no argument for a stand-alone-IIED claim.27
Instead, Kermode argues that he may “assert a claim for mental anguish and emotional distress
under a breach of contract claim.”28 First, the IIED claim is waived to the extent it is asserted as
a separate cause of action rather than an element of the contract claim.29 Second, the Eleventh
Amendment precludes Kermode’s breach-of-contract claim against UMMC and the individual
Defendants in their official capacities. Third, the individual-capacity claim against Farley has
been dismissed. Finally, the relief sought is monetary and retrospective, thus eliminating the Ex
Parte Young foothold.
In summary, the only claims left for consideration are the federal claims for prospectiveinjunctive relief found in Count II (other than the Equal Protection claim), and the surviving
individual-capacity claims against Defendant Farley.

25

See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (“[Plaintiff's]
failure to pursue this claim beyond [the] complaint constituted abandonment.”).
26

Engquist v. Or. Dept. of Agr. 553 U.S. 591, 607 (2008).

27

Pl.’s Mem. [85] at 28–29.

28

Id. at 28.

29

See, e.g., Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (addressing waiver).
8

B.

Count II

In Count II of his Complaint, Kermode alleges that Defendants violated his First, Fourth
and Fourteenth Amendment rights. In particular, he claims that Defendants violated his
constitutionally protected interests without procedural due process and in violation of his right to
substantive due process. As stated, Kermode is now restricted to prospective-injunctive relief if
he otherwise prevails.
1.

Procedural Due Process

Kermode contends that Defendants violated his right to procedural due process under the
Fourteenth Amendment to the Constitution.
The Fourteenth Amendment prohibits any state deprivation of life, liberty, or
property without due process of law. Application of this prohibition requires the
familiar two-stage analysis: We must first ask whether the asserted individual
interests are encompassed within the Fourteenth Amendment’s protection of “life,
liberty or property”; if protected interests are implicated, we then must decide
what procedures constitute “due process of law.”30
Kermode’s protected interests are not disputed. Instead, the parties contest whether Kermode
received the process he was due.
That decision requires a flexible approach because it is “now well established that due
process, unlike some legal rules, is not a technical conception with a fixed content unrelated to
time, place and circumstances. Due process is flexible and calls for such procedural protections
as the particular situation demands.”31 In general, the Court balances three factors: “(1) the

30

Ingraham v. Wright, 430 U.S. 651, 672 (1977); see also Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 (1985).
31

Gilbert v. Homar, 520 U.S. 924, 930 (1997) (citation and internal quotation marks
omitted).
9

private interest affected; (2) the risk of erroneous deprivation from current and proposed
procedures; and (3) the government’s interest.”32
First, there is no reasonable dispute that Kermode’s interest in avoiding termination is
high.33 The Government’s competing interest in removing professors for cause is likewise high.
So the question is whether the process produced a risk of erroneous deprivation.
This inquiry requires review of the pre- and post-termination process.34 Following
Loudermill the Fifth Circuit has applied the following test in the context of tenured employment:
The Due Process Clause requires that a state, before depriving a citizen of
property, provide “some kind of a hearing.” This “hearing” need not be a formal,
adversary hearing. Due process requires only that the employee receive “notice
and an opportunity to respond.” As the Supreme Court put it [in Loudermill],
“The tenured public employee is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.”35
As noted in Schaper v. City of Huntsville, an elaborate pre-termination proceeding may not be
required if it creates an “excessive burden . . . on the government’s interest in quickly removing
an unsatisfactory employee. But in the event of minimal pretermination safeguards, the
substantial private interest one has in not being deprived of his livelihood requires a full hearing
after termination.”36

32

James v. City of Houston Tex., 48 F. App’x 916 (5th Cir. 2002) (citing Matthews v.
Eldridge, 424 U.S. 319, 335 (1976)).
33

Loudermill, 470 U.S. at 543 (“We have frequently recognized the severity of depriving
a person of the means of livelihood.”).
34

Gilbert, 520 U.S. at 930.

35

Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988) (citing Loudermill, 105 S. Ct. at
1495, other internal citations omitted).
36

813 F.2d 709, 716 (5th Cir. 1987) (citing Loudermill, 105 S. Ct. at 1495–96) (emphasis

added).
10

In this case, Kermode was initially informed that his termination was effective
immediately. But the next day he received a letter placing him on suspension with pay pending
the hearing that later occurred. Defendants argue that the hearing was a post-termination
hearing. Kermode seems to take the same position at times but also observes that the deprivation
occurred after the hearing when Jones rejected the Committee’s recommendation and terminated
Kermode’s employment.37
Separation with pay is not the same as termination. The Supreme Court has observed
that “in those situations where the employer perceives a significant hazard in keeping the
employee on the job, it can avoid the problem [of providing a pre-termination hearing] by
suspending with pay.”38 So too in Schaper, the Fifth Circuit observed that no pre-hearing
deprivation occurred because the governmental employee remained on payroll.39 And in
Thibodeaux v. City of Opelousas, the Fifth Circuit disregarded an initial termination letter that

37

Kermode observes this Court’s prior order stating that his employment was terminated
September 25, 2008, without hearing. But that ruling occurred at the Rule 12(b)(6) stage, and
the record presents a different story.
38

Gilbert, 520 U.S. at 929 (citing Loudermill, 470 U.S. at 544–45).

39

813 F.2d at 714 n.5 (citing Loudermill, 105 S. Ct. at 1495); see also Luellen v. City of E.
Chi., 350 F.3d 604, 615 (7th Cir. 2003) (“Using Loudermill and Gilbert as our guides, we cannot
conclude that the lack of pre-suspension hearing in this case violated due process” where
suspension was with pay); Mosely v. N. Va. Cmty. Coll., 129 F.3d 1259, at *2 (4th Cir. 1997)
(unpublished table decision) (holding that “because he was suspended with pay, Mosley was not
entitled to a pre-termination hearing”); Gray v. Laws, 51 F.3d 426, 438 (4th Cir. 1995) (finding
no due process violation where plaintiff was suspended with pay pending investigation and
appealed termination decision); Brewer v. Chauvin, 938 F.2d 860, 866 (8th Cir. 1991)
(interpreting Loudermill to require “an opportunity to respond to charges against him before
cessation of his pay.”).
11

was quickly superceded by a letter rescinding the termination pending hearing.40 Kermode’s
employment was terminated December 12, 2008—after the hearing.
The question becomes whether Kermode received an adequate pre-termination hearing.
There is no dispute that a lengthy hearing occurred. But a question of fact remains whether
Kermode received all of the process he was due.
Due process requires that “[t]he tenured public employee [receive] oral or written notice
of the charges against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.”41 Kermode first contends that he never received notice of the
factual basis for the charges against him.42 Kermode was informed that he faced discharge due
to “malfeasance, contumacious conduct and for cause related to your continued harassment of a
student.”43 The letter itself would not satisfy the Loudermill requirements as the description of
the alleged offenses is vague and there is no discussion regarding the evidence against him.44
Kermode did, however, receive some oral notice which informed him that the student involved
was Park. He was also told that his emails with her formed the basis of the recommendation.

40

250 F.3d 740, at *2 (5th Cir. 2001).

41

Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988) (citing Loudermill, 105 S. Ct. at
1495, other internal citations omitted).
42

See, e.g., Pl.’s Mem. [87] at 5 n.2; id. at 18.

43

Pl.’s Resp. [84] Ex. 4 (emphasis added).

44

See Page, 837 F.2d at 239 (reversing summary judgment and holding that “[e]ffective
notice must convey the specific reasons for termination”).
12

There remains a jury question, however, whether UMMC ever explained the
“malfeasance” and “contumacious conduct” charges.45 Record evidence suggests that Kermode
sought an explanation that was never provided,46 and the way the suspension letter is written, it
appears that these charges were separate from the alleged harassment. That possibility takes root
when viewed in light of Turner’s testimony. When asked why Kermode was fired, Turner first
mentioned that he allowed “his wife to become involved in matters in the laboratory. He
allowed his wife to confront the student, not just once, but twice . . . .”47 Although the record
reflects no notice of this issue, a question exists whether it influenced Jones’s ultimate decision.48
Even after the hearing, Kermode wrote a long letter to Jones pleading his case, but it does not
appear that he knew his wife’s involvement was under consideration.49
Second, Kermode argues that three witnesses met with the Committee in private.50
Similarly, Kermode argues that he never had a chance to hear and confront Park although she
was interviewed as part of the investigation leading to the termination recommendation.51 In

45

See Wells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 682–83 (5th Cir. 1986) (holding
that list of infractions was “vague and fail[ed] to set out the specific circumstances of the
claimed misdeeds. At the very least, these vague charges permit conflicting inferences as to
whether Wells received sufficient notice of the charges against him. The entry of summary
judgment was therefore in error.”).
46

Kermode Dep. at 28-29.

47

See Turner Dep. at 11; see also Pl.’s Resp. [84] Ex. 8, 30(b)(6) Dep. at 32 (confirming
that Human Resources interviewed Park regarding parking lot incident).
48

See, e.g., Jones Dep. at 5 (“There was a decision made before it came to me[,] and I
affirmed the decision that others had made.”).
49

Defs.’ Mot. [72] Ex. LL.

50

Kemode Dep. at 30.

51

Pl.’s Mem. [87] at 6; UMMC 30(b)(6) Dep. at 32.
13

Wells v. Davis Independent School District, the Fifth Circuit observed, “When an administrative
termination hearing is required, federal constitutional due process demands either an opportunity
for the person charged to confront the witnesses against him and to hear their testimony or a
reasonable substitute for that opportunity.”52 A question of fact exists as to whether Kermode
had that opportunity or a reasonable substitute.
Third, there is a jury question whether UMMC adequately provided an explanation of its
evidence. According to Kermode, he was merely told that his emails formed the basis of the
decision. Kermode was arguably on notice of the harassment charge and how the emails might
support the contention. But he states that other evidence and witnesses were offered during the
hearing. As stated in Wells, “[i]t is only when he was not present when [witnesses] were heard
that such measures [e.g., notice of the names of and summary of the testimony of witnesses] are
called for.”53
Fourth, there is at least a jury question whether the post-termination process remedied the
pre-termination issues. Defendants rely heavily on the Committee hearing as providing
sufficient post-termination process.54 But that hearing occurred before the deprivation. And
although Jones testified that he reviewed the hearing record at length, he ultimately accepted the
decision reached before the hearing. In this sense, the case differs from those where a minimal
hearing occurs before the termination followed by a “full hearing” later.55 If UMMC relied on
52

793 F.2d at 683.

53

Id.

54

See Defs.’ Mem. [91] at 7. The issue is not presented in the Parratt/Hudson context.
See Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor,
451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
55

Schaper, 813 F.2d at 716.
14

evidence for which Kermode received no notice, then his opportunity to be heard by Jones may
have been affected.56
This Court must review the evidence in a light most favorable to the non-moving
party—Kermode. When doing so, it appears that a material question exists as to whether he
received adequate notice, an explanation of the evidence, and a full opportunity to be heard. As
such, the Motion is denied as to the Kermode’s due-process claim for prospective-injunctive
relief in Count II.
2.

Substantive Due Process

Although the issue could be revisited at directed verdict, the Court declines Defendants’
motion to dismiss the substantive due process claim based on the current record. “To succeed
with a claim based on substantive due process in the public-employment context, the plaintiff
must show two things: (1) that he had a property interest/right in his employment, and (2) that
the public employer’s termination of that interest was arbitrary or capricious.”57
As Defendants correctly note, all rights are not created equal under the substantive due
process analysis.58 In particular, state-created rights are treated differently from constitutionally
protected rights. In this case, Kermode seems to assert both, but the primary right addressed in
the memoranda is the property interest in continued employment which he believes was taken
without proper procedure. In such cases, the Fifth Circuit’s substantive-due-process analysis
often includes—and is sometimes dependent upon—whether the procedure satisfied due process

56

C.f., Wells, 793 F.2d at 683 (finding no due process violation where the adjudicator acts
“on the sole basis of testimony” given before the employee during the hearing).
57

Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993).

58

Defs.’ Mem. [68] at 21.
15

such that the decision was not arbitrary and capricious.59 The parties have not addressed this
issue specifically, and the Court is reluctant to say more without the benefit of briefing. Having
found a jury question on procedural due process, the Court likewise carries the substantive due
process issue over for trial.60
3.

Liberty Interest in Reputation

Kermode asserts a § 1983 claim based on deprivation of his liberty interests. He cites
Wells v. Hico Independent School District which provides a good summary of the law:
To establish a liberty interest, an employee must demonstrate that his
governmental employer has brought false charges against him that “might
seriously damage his standing and associations in his community,” or that impose
a “stigma or other disability” that forecloses “freedom to take advantage of other
employment opportunities.” Board of Regents v. Roth, 408 U.S. 564, 573 (1972).
See Wells v. Doland, 711 F.2d 670, 676 (5th Cir. 1983). Mere proof that
nonrenewal might make an individual less attractive to other employers does not,
by itself, implicate a liberty interest. Roth, 408 U.S. at 574 n.13. Dennis v. S. &
S. Consolidated Rural High School District, 577 F.2d 338, 340 (5th Cir. 1978).
(“[M]ere nonrenewal of a teacher’s contract is not such a blight upon his good
name, reputation, honor, or integrity as to constitute a deprivation of liberty.”).
Nor is reputation alone a constitutionally protected interest, even though state law
may create an action for defamation. Paul v. Davis, 424 U.S. 693 (1976). Rather,
the stigma must be imposed by the state in connection with its denial of a right or
status previously recognized by state law, such as the nonrenewal at issue here,
though loss of a property interest (such as tenured employment) is not required.
Dennis, 577 F.2d at 341-42; Wells, 711 F.2d at 676 (the stigmatization must be
“in or as a result of the discharge process”).61
59

See, e.g., Schaper v. City of Huntsville, 813 F.2d 709, 718 (5th Cir. 1987); Pastorek v.
Trail, 248 F.3d 1140, at *5 (5th Cir. 2001) (unpublished table decision); Shearer v. Bowen, 216
F.3d 1080, at *8 (5th Cir. 2000) (unpublished table decision).
60

The Court also notes that this portion of Defendants’ Memorandum relies heavily on the
emails and other correspondences attached to their motion. But Defendants never establish that
the exhibits are true and correct copies of the documents upon which they relied. In this sense,
the exhibits are not authenticated and cannot be considered. Duplantis v. Shell Offshore, Inc.,
948 F.2d 187, 192 (5th Cir. 1991) (stating that summary judgment evidence must be
authenticated).
61

736 F.2d 243, 256 (5th Cir. 1984) (parallel cites omitted).
16

But Wells has another requirement Kermode ignores. To state a claim, “[t]he employee
must also show that the governmental agency has made or is likely to make the . . . stigmatizing
charges public in any official or intentional manner, other than in connection with the defense of
[related legal] action.”62 As Defendants correctly note, Kermode’s Memorandum merely
describes the legal standard without directing the Court to any record evidence supporting this
element. And the Court’s own review of the record failed to uncover evidence sufficient to
create a jury question regarding publication of false and stigmatizing charges. The claim is
therefore dismissed.
4.

First Amendment Claim

Kermode likewise seeks damages under § 1983 for violation of his First Amendment
Rights. In his Memorandum, Kermode explains his First Amendment claim as follows:
The United States Supreme Court “has long recognized that, because the Bill of
Rights is designed to secure individual liberty, it must afford the formation and
preservation of certain kinds of highly personal relationships a substantial
measure of sanctuary from unjustified interference by the State. E.g., Pierce v.
Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S.
390, 399 (1923).” Roberts v. United States Jaycees, 468 U.S. 609 (1984).
Whether UMMC violated the plaintiff’s First Amendment rights to association, is
likewise a question of fact.63
Although he makes a few references to the term “First Amendment” in the balance of his
Memorandum, Kermode never explains exactly how Defendants violated his First Amendment
rights. As previously noted, the nonmoving party must “go beyond the pleadings” and
“designate ‘specific facts showing that there is a genuine issue for trial.’”64 Here, Kermode has

62

Id. (internal quotation marks omitted).

63

Pl.’s Mem. [87] at 26 (parallel cites omitted).

64

Celotex, 477 U.S. at 324 (citation omitted).
17

merely observed that the Bill of Rights protects citizens and that he claims a First Amendment
violation. Without more, the Court is compelled to find that he has not met his burden under
Rule 56.65
C.

Defendant Farley

Defendant Farley is the lone defendant facing individual capacity claims.66 For the
reasons previously stated, all official-capacity claims based on state law and for monetary
damages are dismissed. As for the individual-capacity claims, this Court previously granted
portions of Farley’s Motion to Dismiss based on qualified immunity and immunity under the
MTCA.67 The only state-law claims that survived Farley’s motion are (1) invasion of privacy
(Count V); (2) intentional interference with contract (Count VI); (3) defamation (Count VII); and
(4) civil conspiracy (Count VIII).68
1.

Invasion of Privacy

Kermode states in his Memorandum that “Dr. Farley intentionally intruded upon the
solitude or seclusion of Dr. Kermode by bringing his relationship with his wife into the ‘public
arena.’”69 The only intrusion mentioned is that Farley told Park that Kermode was having
problems with his marriage.

65

See TIG Ins., 276 F.3d at 759 (observing that unsupported assertions are not sufficient
to create a question for trial).
66

Am. Compl. ¶ 4.

67

July 2, 2010 Order [38].

68

It does not appear that the Order addressed the invasion-of-privacy claim.

69

Pl.’s Mem. [87] at 30.
18

Intrusion into the solitude or seclusion of another is one of the four recognized theories of
recovery under the invation-of-privacy umbrella.70
[T]o recover for an invasion of privacy, a plaintiff must meet a heavy burden of
showing a substantial interference with his seclusion of a kind that would be
highly offensive to the ordinary, reasonable man, as the result of conduct to which
the reasonable man would strongly object. Further, the plaintiff must show some
bad faith or utterly reckless prying to recover on an invasion of privacy cause of
action.71
Assuming these facts fit the theory, Kermode has not met his heavy burden on the first
prong of the test because he brought his wife into the “public arena.” The following facts are not
disputed in the record: (1) Kermode agreed to take Park to the Gordon Research Conference
where the leading authorities in Park’s chosen field would meet; (2) Kermode did not tell his
wife that he was taking Park; (3) when Kermode’s spouse learned of the conference, she was
“very angry with [him]”;72 (4) Kermode’s wife asked Park to meet her in a parking lot after a
dinner party and confronted her about the conference; (5) Kermode allowed his wife to veto
Park’s invitation to attend the Gordon Research Conference; (6) Kermode forwarded an email
from his wife to Park regarding the dispute; (7) Kermode disclosed the conflict to another
student, Burke, and informed her that his wife was “upset.”73 Under the circumstances, Kermode
has failed to create a record sufficiently demonstrating a jury question on whether a “substantial
interference with his seclusion” existed.

70

Deaton v. Delta Democrat Publ'g Co., 326 So. 2d 471, 473 (Miss. 1976).

71

Plaxico v. Michael, 735 So. 2d 1036, 1039 (Miss. 1999) (citations and internal
quotation marks omitted).
72

Kermode Dep. at 94.

73

Burke Aff. ¶ 11.
19

2.

Intentional Interference with Contract

“Tortious interference with contract occurs when one causes another to breach a contract
with a third person.”74 To prevail, a plaintiff must establish the following:
(1) that the acts were intentional and willful; (2) that they were calculated to
cause damage to the plaintiff in his/her lawful business; (3) that they were done
with the unlawful purpose of causing damage and loss, without right or justifiable
cause on the part of the defendant (which acts constitute malice); and (4) that
actual damage or loss resulted.75
In this case, Defendant Farley invokes immunity under the MTCA without relevant
supporting authority. But as the Court previously ruled, the claim is malice-based and not
subject to immunity.76
The parties then focus on the “unlawful purpose” prong of the test. According to
Kermode’s Memorandum, Farley sought revenge for reasons even Kermode finds insufficient.
According to his Memorandum, Kermode was critical of a hiring decision involving Farley.77
But when asked during his deposition whether this served as motivation for Farley to act,
Kermode testified, “No, I don’t know that it was a motivation. I’m just saying that was a
dispute. You asked me about that [disputes between the two].”78 Kermode also testified that

74

McBride Consulting Serv., LLC v. Waste Mgmt. of Miss., Inc., 949 So. 2d 52, 55 (Miss.
Ct. App. 2006) (citing Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (¶ 8) (Miss.
1998)).
75

Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 910 So. 2d 1093,
1098 (Miss. 2005) (citation omitted).
76

See Zumwalt v. Jones Cnty. Bd. of Supervisors, 19 So. 3d 672, 688 (Miss. 2009)
(holding tortious interference with business relations and contracts not within course and scope
of employment under MTCA because proof of malice is required).
77

Pl.’s Mem. [87] at 29.

78

Kermode Dep. at 51.
20

Farley—who met repeatedly with Park and Kermode and was privy to the email
exchanges—simply made a “judgment” that he believed Park’s story that Kermode would not
abide by her wishes to be left alone.79 He suggests that Farley should have investigated further,
but if, as Kermode states, Farley believed Park’s story, then no malice would be possible. And
Park’s story—that Kermode tried to persuade Park after her decision is not disputed. For
example, Kermode never addresses Burke’s declaration that Kermode told her he planned to
“continue emailing” Park to convince her to return despite knowing “he was not supposed to try
to talk to her.”80 Similarly, Kermode testified that he contacted Park after what he perceived to
be her final decision.81
No reasonable juror could find that the hiring decision constituted a basis for malice
when Kermode himself stated under oath that he did not believe that it was. Kermode offers no
other response to this portion of Defendants’ Motion, and summary judgment is therefore proper.
3.

Defamation

Kermode contends that Defendant Farley defamed him. To establish defamation,
Kermode must prove the following:
(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged
publication to a third party; (3) fault amounting at least to negligence on the part
of the publisher; and, (4) either actionability of the statement irrespective of
special harm or the existence of special harm caused by the publication.82

79

Id. at 49.

80

Burke Aff. ¶ 12.

81

Kermode Dep. at 57.

82

Blake v. Gannett Co., Inc., 529 So. 2d 595, 602 (Miss. 1988) (citing Chatham v. Gulf
Publ’g. Co., Inc., 502 So. 2d 647, 649 (Miss. 1987)).
21

In his Memorandum, Kermode justifies the defamation claim by stating that “Dr. Farley
made several statements to Helen Turner, Jim Dorn and other faculty and staff claiming that Dr.
Kermode ‘harassed Ms. Park,’ and that he had been fired from UMC even before he had a due
process hearing.”83 Starting with the alleged statements to “other faculty and staff,” the record is
not sufficient to sustain the claim. Although not clarified in his Memorandum, Kermode’s
deposition testimony demonstrates that these individuals were the ones who allegedly heard the
statement that he was fired before he was.84 More specifically, Kermode testified that he spoke
with a secretary who believed his employment was terminated before the hearing. Kermode then
speculated that Farley must have published the information.85 Kermode carries the burden under
Rule 56(c) to identify specific record evidence creating a genuine issue for trial—speculation is
not sufficient.86 His vague reference to “other” unidentified “faculty and staff” learning about
the termination falls short.
Turning to Farley’s alleged statement to Dorn and Turner, Kermode contends that Farley
said Park had been harassed. Farley argues that the statement is true, and “[t]ruth is an absolute
defense to a defamation lawsuit in Mississippi.”87 “[A]ll that this Court requires is that the
statements be ‘substantially true.’”88 And “the plaintiff in a defamation action bear[s] the burden

83

Pl.’s Mem. [87] at 27.

84

Kermode Dep. at 53–54.

85

Kermode Dep. at 53–54 (stating that secretary heard he was terminated and speculating
that Farley was “most likely source”).
86

TIG Ins. Co., 276 F.3d at 759.

87

Journal Publ'g Co. v. McCullough, 743 So. 2d 352, 360 (Miss. 1999).

88

Blake, 529 So.2d at 603 (citations omitted).
22

of proving falsity.”89 Finally, “whether the offending words are defamatory may be decided by
the trial court without submission to the jury.”90
In this case, the alleged statements to Dorn and Turner—that Kermode “harassed”
Park—were substantially true. Kermode essentially argues that “characteriz[ing]” his conduct as
“harassment” was false and defamatory.91 Excerpts from the hearing transcript reveal that
Farley did not use the term to suggest sexual harassment.92 Instead, he used the term to
generally describe Park’s concern that Kermode would not stop contacting her.93 Significantly,
Kermode—who carries the burden of proving falsity—has offered no evidence rebutting the
assertion that Park complained about Kermode’s continued contact. And as noted above, there is
no dispute in this record that Kermode attempted to change Park’s mind about leaving his lab,
that he expressed an intent to continue trying despite knowing that he was supposed to stop,94
and that he made at least one attempt at persuasion after what he considered to be her final
decision.95 Webster’s defines “harassment” as “to annoy persistently.” Merriam-Webster’s

89

Id.

90

Armistead v. Minor, 815 So. 2d 1189, 1194 (Miss. 2002) (affirming summary judgment
and collecting cases).
91

Pl.’s Mem. [87] at 4.

92

Hearing Trans. at 97.

93

Id. Defendants did not suggest that the statements were opinion. See Ferguson v.
Watkins, 448 So. 2d 271, 276 (Miss. 1984) (discussing opinion privilege).
94

Burke Aff. ¶ 12.

95

Kermode Dep. at 57.
23

Collegiate Dictionary 567 (11th ed. 2007). Given this record, Farley’s characterization was
substantially true.96
Even if the statement was not substantially true, a qualified privilege exists in the
employment context as discussed in Staheli v. Smith.97 The qualified privilege
is restricted both as to scope of and motivation for the communication. . . . [A]
qualified privilege exists between those directly interested in the same matter and
in the absence of malice no cause of action lies. When qualified privilege is
established, statements or written communications are not actionable as
slanderous or libelous absent bad faith or malice if the communications are
limited to those persons who have a legitimate and direct interest in the subject
matter. Further, . . . [i]f publication is made to persons outside the circle—those
not having a legitimate and direct interest in the subject matter of the
communication—the protection of the privilege may not be invoked.98
Kermode asserts a question of fact as to whether the privilege existed, but no reasonable
juror could find that Dorn and Turner lacked a direct interest in the matter. Dorn was the Interim
Director of Human Resources, and Turner was Assistant Vice Chancellor. Both were among the
administrators involved in the termination recommendation. As for “bad faith or malice,”
Kermode again offered speculative observations about Farley’s motives which, as addressed
above, are not sufficient to create a question for the jury.99 Farley’s privileged statements are
96

In the facts section of his Memorandum, Kermode argues that Farley and Dorn told the
Committee that Kermode “made statements of a quid pro quo nature.” Pl.’s Mem. [87] at 7. The
argument suggests sexual harassment, but Kermode offers no cite for this factual assertion, and
the Court is not required to search for record evidence supporting it. Jackson v. Cal-W.
Packaging Corp., 602 F.3d 374, 379–80 (5th Cir. 2010). Nevertheless, the unrebutted record
evidence demonstrates that sexual harassment was never the issue. Jones Dep. at 10 (“There was
not any indication of sexual harassment.”).
97

548 So. 2d 1299, 1305–06 (Miss. 1989) (affirming summary judgment of defamation
claim against university faculty who recommended against tenure).
98

Id. (citing Bush v. Mullen, 478 So. 2d 313, 314 (Miss. 1985) (internal citations and
quotation marks omitted)).
99

See Kermode Dep. at 49–51.
24

consistent with the record.100 The Court concludes that Kermode’s defamation claim fails to
survive Rule 56(a) scrutiny.
4.

Civil Conspiracy

Although the Amended Complaint includes a claim of civil conspiracy, Kermode does
not address the claim, and therefore has abandoned it in his Response. Regardless, the record
does not survive Defendants’ summary-judgment motion. Civil conspiracy requires proof of “a
combination of persons for the purpose of accomplishing an unlawful purpose or a lawful
purpose unlawfully.”101 The claim fails absent proof that Farley had such intent,102 and there is
no record evidence regarding anyone else’s intent.
D.

Cross-Motion for Summary Judgment

Kermode’s Cross-Motion for Summary Judgment was untimely. Regardless, the Court
finds questions of fact that preclude summary judgment in his favor.
IV.

Conclusion
Kermode’s claim survives to the extent of the official capacity claims for prospective-

injunctive relief based on alleged violation of his right to procedural and substantive due process.
All other claims are hereby dismissed.
100

Kermode has at other times challenged the veracity of other statements, such as
whether a “purported ‘confrontation’” occurred between Park and his wife. Kermode Aff. ¶ 9.
But as Defendants observe, these statements are undisputed in the present record. See Defs.’
Reply [91] at 10–11.
101

Levens v. Campbell, 733 So. 2d 753, 761 (Miss. 1999) (rejecting claim of conspiracy to
tortiously interfere with contractual relations where the plaintiff “failed to show that [the
defendant] maliciously interfered with her employment”); see also Ryals v. Pigott, 580 So. 2d
1140, 1156 (Miss. 1990) (no agreement to interfere with business enterprise could be actionable
as civil conspiracy because alleged purpose of agreement did not involve conduct which would
itself have been an actionable tort).
102

Levens, 733 So. 2d at 761; Ryals, 580 So. 2d at 1156.
25

Finally, the Court notes that the parties cancelled the previously scheduled settlement
conference. The parties are hereby ordered to mediate this matter before Magistrate Judge Ball
within thirty days of this Order. If settlement is not reached, the parties shall contact the Court’s
courtroom deputy to set the matter for pretrial conference.
SO ORDERED AND ADJUDGED this the 15th day of September, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

26