Simpson v. Alcorn State University et al

Filing 14

Memorandum Opinion and Order dismissing complaint with prejudice, denying 13 MOTION to Strike. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 6/13/14 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ALVIN T. SIMPSON

PLAINTIFF

VS.

CIVIL ACTION NO.: 3:13CV424TSL-JMR

ALCORN STATE UNIVERSITY;
M. CHRISTOPHER BROWN, INDIVIDUALLY
AND OFFICIAL CAPACITY; SAMUEL WHITE,
INDIVIDUALLY AND OFFICIAL CAPACITY;
ROBERT Z. CARR, JR., INDIVIDUALLY AND
OFFICIAL CAPACITY; MALINDA BUTLER,
INDIVIDUALLY AND OFFICIAL CAPACITY;
DORIS E. MCGOWAN, INDIVIDUALLY AND
OFFICIAL CAPACITY; BOARD OF TRUSTEES OF
INSTITUTIONS OF HIGHER LEARNING;
MISSISSIPPI INSTITUTIONS OF HIGHER LEARNING

DEFENDANTS

MEMORANDUM OPINION AND ORDER
From 1991 until his resignation in May 2012, plaintiff Alvin
T. Simpson was employed as a professor in the Department of
Education and Psychology of Alcorn State University (ASU) pursuant
to a series of contracts with the Mississippi Institutions of
Higher Learning (IHL).

From 2008 to 2011, he also served as

interim Chair of the Department of Education and Psychology.
Simpson filed the present action on May 10, 2013 against ASU, IHL
and a number of ASU officials and employees, asserting putative
claims for disability discrimination under the Rehabilitation Act,
29 U.S.C. § 794; violation of the Family Medical Leave Act, 29
U.S.C. § 2601 et seq.; violation of his due process rights under
the Fourteenth Amendment; retaliation for the exercise of his

First Amendment rights; for conspiracy ostensibly in violation of
42 U.S.C. §§ 1983 and 1985; and for breach of contract.1

The case

is presently before the court on a motion by all defendants to
dismiss or, in the alternative, for summary judgment.
Despite having requested and received two extensions of time
to respond to the motion, plaintiff failed to timely respond to
the motion.

He did finally file a response, two weeks beyond the

latest deadline established by the court at his request; and he
did so without seeking a further extension or leave to file his
response out of time.

Given these circumstances, defendants have

understandably moved to strike plaintiff’s response.

It is a

reasonable request, and the court certainly would be well
justified in striking the response.

However, since nothing in the

response alters this court’s view that dismissal is in order, the
court will deny the motion to strike.

1

The case was originally filed in the Circuit Court of
Hinds County, Mississippi, but was timely removed by defendants on
the basis of federal question jurisdiction under 28 U.S.C. § 1331.
The court notes that while defendants assert Eleventh Amendment
immunity as a basis for dismissal of plaintiff’s federal claims
against IHL, ASU and the individual defendants in their official
capacities, their removal of the case operated as a waiver of such
immunity. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535
U.S. 613, 623-24, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002)
(holding that “removal is a form of voluntary invocation of a
federal court's jurisdiction sufficient to waive the State's
otherwise valid objection to litigation of a matter ... in a
federal forum”).
2

Plaintiff’s Complaint
The allegations of plaintiff’s complaint relate to troubles
that began in mid 2009, after he reported to an IHL auditor that
defendant Doris McGowan, an ASU employee, had forged his signature
on a payment authorization to pay $5,000 to ASU employee Doris
Gary (resulting in Gary’s termination in July 2009 but not
McGowan’s).

Plaintiff alleges that McGowan and her husband began

engaging in retaliatory conduct toward him.

In October 2009,

plaintiff made an official complaint to ASU about the McGowans’
conduct; but ASU took no action in response to his complaint and
therefore, on October 14, 2009, he reported the McGowans’
“criminal activity” to the Attorney General’s office.
At some point subsequent to Gary’s termination, defendant
Robert Carr was installed as Dean of the Department of Education
and Psychology.

Plaintiff alleges that although Carr knew of the

reason for Gary’s termination and had been specifically advised by
IHL that she was ineligible for rehire, Carr nevertheless rehired
her in September 2010 as an adjunct professor without seeking
input from plaintiff, for whom he expressed disdain for having
been a whistleblower.

Plaintiff states that he complained about

Carr’s “unlawful conduct,” and that contrary to ASU policy, he was
not evaluated during the 2010-11 academic year and consequently
did not receive a pay raise in January 2012.

3

Plaintiff alleges that in August 2010, he informed Carr of
his “health problems and spinal cord injury.”

The following

month, plaintiff was hospitalized because of his “disability.”

He

claims that Carr “pestered” and “intimidated” him into returning
to work before he was well, and then, upon his return to work,
imposed additional job assignments on plaintiff for the specific
reason of “agitating and harassing” him.

Specifically, after the

officer manager retired in October 2010, Carr refused to hire an
office manager to provide plaintiff assistance, causing plaintiff
to have to take on secretarial tasks, which “agitated his medical
condition.”
The complaint states that in late 2010, Carr formed a “search
committee” to select a permanent chair for the Department of
Education and Psychology, which committee was comprised of
“predominantly female employees with whom Carr knew plaintiff had
adversarial relationships.”

One such member was a Barbara Martin,

who “carried a grudge” against plaintiff because he had not
supported her application for promotion to professor.

Plaintiff

alleges that although he qualified and applied for the position,
the committee recommended Malinda Butler for the position,
notwithstanding that she did not possess the requisite academic
rank to qualify for the position; and in June 2011 Carr announced
his selection of Butler for the position.

Plaintiff alleges that

following the alleged “unlawful” choice of Butler over plaintiff
4

as permanent Department Chair, Butler commenced to engage in
retaliatory conduct against him, forcing him to vacate his office
and move into her old office in an attempt to humiliate him, and
then failing to give him a key to the office, leaving him with no
access to any office for nearly a month in the summer of 2011.
Further, in July 2011, at a time when he was teaching three online
classes, Butler sent a letter threatening to terminate him based
on his having been absent from the University for more than twenty
days, i.e., not physically “on campus”, without having received
approved FMLA leave for such absence.

Plaintiff alleges that

other non-disabled faculty members were allowed to teach online
courses without threat of termination.
On July 29, 2011, plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC),
complaining of gender discrimination with respect to his claimed
“demotion” from his position as interim Department Chair and
disability discrimination and retaliation with respect to his
threatened termination.

Around the same time as his EEOC charge,

he filed a formal grievance with defendant Samuel White, Vice
President for Adacemic Affairs, claiming that Butler was
unqualified for the position of Department Chair.

However, White

refused to process the grievance, which led plaintiff to turn to
IHL for assistance.

He alleges that ASU President Christopher

5

Brown became so angry with him for having contacted IHL that he
refused to meet with or discuss any issues with plaintiff.
Ultimately, defendants did schedule a hearing for December
13, 2011.

At the time, plaintiff he was approved FMLA leave due

to his medical condition.

At this time, plaintiff was also the

subject of an allegation of sexual harassment by a male student.
Plaintiff alleges that defendants, in direct retaliation for his
complaints to IHL about his concerns, leaked to the news media
that he would be on campus on December 13 for a grievance hearing
so that the media could catch him on film.

He further alleges

that defendants attempted to portray him as homosexual and engaged
in gay stereotyping.
Also during this time period, according to plaintiff, despite
a directive from IHL to ASU to investigate his grievances, Brown
refused to allow such investigation.

As a result, in December

2011, plaintiff made a formal complaint to the federal government
based on whistleblower reprisal claims related to the use of
educational funds at ASU through the American Recovery and
Reinvestment Act of 2009.
On January 20, 2012, the Grievance Committee issued its
report, finding that Carr had engaged in misconduct in several
respects, the “most troubling” being the appointment of Butler as
Department Chair.

According to the complaint, the committee found

that Carr had a clear bias against plaintiff, that he influenced
6

the search committee in an improper manner, and that Butler was
not qualified for the position.

However, despite the committee’s

recommendation that a search be reopened, defendants rejected that
recommendation and kept Butler in the position.

Plaintiff alleges

that due to the “continuing retaliation treatment” by defendants,
he was forced to take early retirement effective May 15, 2012,
which constituted constructive discharge.
Based on these allegations, plaintiff has purported to assert
federal claims for violation of the Rehabilitation Act and the
Family Medical Leave Act; for violation of his right to free
speech guaranteed by the First Amendment; for infringement of his
Fourteenth Amendment due process rights; and for conspiracy in
violation of his rights under 42 U.S.C. §§ 1983 and 1985.

In

addition, he has asserted a state law claim for breach of
contract.

In response to defendants’ motion, plaintiff has

conceded the conspiracy claim and the FMLA claim.

The remaining

claims are addressed seriatim.
Rehabilitation Act
In Count I of his complaint, plaintiff asserts a claim for
disability discrimination under § 504 of the Rehabilitation Act,
29 U.S.C. § 794, based on his allegations that on account of his
disability or perceived disability, defendants refused to evaluate
him and give him a raise in January 2012 and forced him into early
retirement.

He additionally alleges that defendants failed to
7

accommodate his disability by refusing to allow him to teach
online courses and requiring him to perform duties that should
have been done by an office manager.
Section 504 of the Rehabilitation Act “prohibits
discrimination on the basis of disability by recipients of federal
funds.”

E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606,

614 n.5 (5th Cir. 2009); 29 U.S.C. § 794(a) (providing that “[n]o
otherwise qualified individual with a disability in the United
States [as defined in this title] shall, solely by reason of her
or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial
assistance....”).

Claims under the Rehabilitation Act are

analyzed under the same standards applicable to claims brought
under the Americans with Disabilities Act (ADA), including the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).

See Cohen v.

Univ. Of Texas Health Sci. Ctr., 2014 WL 523615, at *3-4 (5th Cir.
Feb. 11, 2014) (ADA and Rehabilitation Act are jointly interpreted
so that jurisprudence interpreting either section is applicable to
both) (citations omitted).

Under the McDonnell Douglas framework,

a plaintiff must first establish a prima facie case of
discrimination or retaliation.

To establish a prima facie case of

discrimination under the Rehabilitation Act, a plaintiff must show
8

that (1) he has a disability; (2) he was otherwise qualified for
his job; (3) he worked for a program or activity receiving Federal
financial assistance; and (4) that he was discriminated against
“by reason of his ... disability.”

Sapp v. Donohoe, 539 Fed.

App’x 590, 595 (5th Cir. 2013).
Defendants argue that plaintiff cannot establish a prima
facie case of disability discrimination as he cannot show he had a
qualifying disability.

“The threshold issue in a plaintiff's

prima facie case is a showing that [he] suffers from a
disability[.]”

Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024

(5th Cir. 1999) (per curiam).

“To come within the coverage of the

[Rehabilitation Act], a person must have a ‘physical or mental
impairment that substantially limits one or more major life
activities.”

Duncan v. Univ. of Texas Health Science Ctr. at

Hous., 469 Fed. App’x 364, 368-69 (5th Cir. 2012) (quoting 2 U.S.C.
§ 12102(1)(A)).

“These are activities such as ‘hearing, speaking,

breathing, learning and working.’” Id. (quoting McInnis v. Alamo
Cmty. Coll. Dist., 207 F.3d 280 (5th Cir. 2000)).

“An impairment

is substantial if it ‘substantially limits the ability of an
individual to perform a major life activity as compared to most
people in the general population.’”

Lanier v. Univ. of Texas Sw.

Med. Ctr., 527 Fed. App’x 312, 318 (5th Cir. 2013) (quoting 29
C.F.R. § 1630.2(j)(1)(ii)).

As defendants correctly point out,

plaintiff has not described the nature of his alleged disability –
9

other than to mention unspecified “health problems” and a “spinal
cord disorder” – and he has not indicated the manner in which any
such condition substantially limits any major life activity. His
allegations are manifestly insufficient to state a prima facie
case.2
Moreover, there is no proof that plaintiff suffered an
adverse employment action solely on account of any claimed
disability.

In his response to the motion, plaintiff maintains

that his pleading and evidence that he was constructively
discharged satisfy the requirement of an adverse employment
action.

While a constructive discharge does qualify as an adverse

employment action, Thomas v. Atmos Energy Corp., 223 Fed. App’x
369, 376 (5th Cir. 2007) (citations omitted), plaintiff’s evidence
is insufficient to support a finding that he was constructively
discharged.

Plaintiff notes that

2

Plaintiff’s response does not remedy this shortcoming.
Simpson states in his response brief that he was determined by the
Social Security Administration to be disabled in August 2011, but
he has offered no evidence to support this assertion and further,
has not suggested how such a ruling would bear on his burden to
prove his claim under the Rehabilitation Act. And he still does
not explain the nature of his claimed disability or describe how
it substantially limits his ability to perform a major life
activity.
Plaintiff’s allegation that defendants’ failed to accommodate
his disability fails for this same reason. See Lanier v. Univ.
of Texas Sw. Med. Ctr., 527 Fed. App’x 312, 318 (5th Cir. 2013)
(prima facie case of discrimination for failure to accommodate
requires that plaintiff show, inter alia, that he was disabled).
10

[a]n employee who resigns may demonstrate constructive
discharge by two means. First, she can "offer evidence
that the employer made her working conditions so
intolerable that a reasonable employee would feel
compelled to resign." Barrow v. New Orleans Steamship
Assoc., 10 F.3d 292, 297 (5th Cir. 1994). Second, an
employee can prove constructive discharge with evidence
that she was given an ultimatum requiring her to choose
between resignation and termination. Faruki v. Parsons
S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997).
David v. Pointe Coupee Parish Sch. Bd., 247 F.3d 240, 2001 WL
43530, at *2 (5th Cir. 2001).

Plaintiff argues that he has

presented facts to support both alternatives.

First, he contends

that he felt compelled to resign, as would have any reasonable
employee, in view of defendants’ failure to promote him to the
position of Department Chair when he was the only qualified
applicant, coupled with defendants’ refusal to comply with the
directive of the Grievance Committee, and further in view of
defendants’ “continuation of hiring individuals that were in clear
violation of ASU policy.”

In the court’s opinion, however, even

if plaintiff was the only qualified applicant, plaintiff’s
nonselection as Department Chair and defendants’ rejection of the
Grievance Committee’s recommendation that Butler be removed from
the position, would not have caused a reasonable person to have
felt compelled to resign from his long-time position as professor
at the University.

As to plaintiff’s reference to “continuation

of hiring individuals that were in clear violation of ASU policy”,
there is nothing in the complaint or in plaintiff’s response

11

affidavit to explain this; nor is there anything alleged or
presented to indicate how the hiring of individuals in violation
of ASU policy might have negatively affected plaintiff to such an
extent he felt compelled to resign.3
As to the second alternative method of demonstrating
constructive discharge, plaintiff points out that in her July 2011
letter regarding his unapproved absences, Butler wrote:

“[A]t

this time there is no other alternative other than to not consider
you for employment beyond the contracted nine months in the
future.” Plaintiff contends this raises a question of fact as to
whether he was constructively discharged.

In so arguing, he seems

to suggest that this language meant that his contract would not be
renewed once it expired in May 2012 – but if that were the case,
then there was no ultimatum or need for him to have resigned.

3

Yet

The laundry list of complaints set forth in plaintiff’s
letter of resignation does not support his claim either. Even if
the list constituted competent summary judgment proof of the
existence of the circumstances about which plaintiff complained –
which it does not, see Winding v. Lard, Civ. Action No.
3:13cv142–DPJ–FKB., 2013 WL 6730097 (S.D. Miss. Nov. 21, 2013
(hearsay not competent summary judgment evidence) – these
circumstances do not support a finding that plaintiff was
constructively discharged. While some of the items in the list
relate to alleged mistreatment of plaintiff, e.g., retaliation for
whistle blowing on illegal acts, disability discrimination,
unfavorable treatment, at least as many of the items relate to
general institutional deficiencies that would have affected all
employees, e.g., ASU president’s pompous behavior, lack of
integrity by ASU administration, non-compliance to University’s
mission statement, obvious nepotism, and lack of concern relating
to serious problems that affect the infrastructure of the
University.
12

plaintiff does not allege that his contract was recommended for
nonrenewal.

The letter does not support his claim of constructive

discharge.
For the reasons cited, plaintiff’s claim under the
Rehabilitation Act will be dismissed.
Breach of Contract
In Count II of the complaint, plaintiff alleges that he was
constructively discharged in breach of his “continued employment
contract” with ASU/IHL.

Defendants contend, first, that

plaintiff’s claim for breach of contract must be dismissed since
plaintiff failed to give the pre-suit notice required by the
Mississippi Tort Claims Act.

See Miss. Code Ann. § 11-46-11(1)

(requiring that person seeking to bring claim covered by MTCA must
file notice of claim with chief executive officer of the
governmental entity at least 90 days before instituting suit).
While a claim for breach of an implied contract provision is
covered by the MTCA and thus would be subject to the MTCA’s presuit notice provision, see City of Jackson v. Estate of Stewart,
908 So. 2d 703, 711 (Miss. 2005) (holding that MTCA grants
immunity to the state and its political subdivisions for ‘breach
of implied term or condition of any warranty or contract’), this
requirement does not apply to actions for breach of the express
terms of a contract, see id. (recognizing that state and its
political subdivisions may not invoke sovereign immunity to escape
13

their written contractual obligations).

Plaintiff does not

identify the provision(s) of his employment contract that he
contends were violated but rather broadly alleges that his
constructive discharge was a breach of the contract.

To the

extent that he may be asserting breach of an implied term of the
agreement, his claim is barred for failure to provide the required
pre-suit notice.

To the extent he claims his constructive

discharge breached an express term of his contract, his claim
fails for lack of proof that he was constructively discharged.
As with federal law, the standard for constructive discharge
under Mississippi law is exacting:

“In order for a constructive

discharge to have occurred the employer must have made conditions
so unbearable that in turn the employee reasonably feels compelled
to resign.”

LaFoe v. Mississippi Empl. Sec. Com'n, 909 So. 2d

115, 118 (Miss. Ct. App. 2005) (citing Hoerner Boxes, Inc. v.
Mississippi Empl. Sec. Comm'n, 693 So. 2d 1343, 1347 (Miss.
1997)).

To reiterate, plaintiff’s allegations and proof do not

even come close to satisfying this standard.

It follows that he

has no cognizable claim for breach of contract.
Constitutional Claims: First Amendment and
Fourteenth Amendment Due Process Clause
Plaintiff alleges that defendants “disregarded [his] right”
to a grievance hearing” in violation of his Fourteenth Amendment
right to due process.

Apparently, this allegation has reference

14

to plaintiff’s allegation that defendants failed to afford him a
hearing in connection with his formal grievance challenging the
selection of Malinda Butler as Department Chair.

He also vaguely

alleges that defendants’ “wrongful conduct” violated his rights
under the First Amendment.
While “Section 1983 provides a private right of action for
damages to individuals who are deprived of ‘any rights,
privileges, or immunities' protected by the Constitution or
federal law by any ‘person’ acting under the color of state law,”
Stotter v. Univ. of Texas at San Antonio, 508 F.3d 812, 821 (5th
Cir. 2007) (quoting 42 U.S.C. § 1983), plaintiff has not sued
defendants under 42 U.S.C. § 1983 for the alleged violations of
the First and Fourteenth Amendments.4

Rather, he has brought

these claims directly under the Constitution.

Presumably, that is

because states, their departments and agencies, and their
officials acting in their official capacities are not deemed
“persons” and thus are not subject to suit under § 1983.

See Will

v. Michigan State Dep't of Police, 491 U.S. 58, 71 & n.10, 109 S.
Ct. 2304, 105 L. Ed. 2d 45 (1989) (holding with regard to suits
for monetary damages, “neither a state or persons acting in their
official capacities are ‘persons' under § 1983”); Cronen v. Texas

4

Plaintiff argues in his response memorandum that he has
brought a § 1983 claim for violation of his due process rights.
The complaint does not support this characterization of the claim.
15

Dept. of Human Servs., 977 F.2d 934, 936 (5th Cir. 1992) (“The
state and the agency properly argue that they are not ‘persons'
for purposes of liability under 42 U.S.C. § 1983 (1988).”).
However, in Mawson v. Mississippi State Deptartment of Health,
Civil Action No. 3:11CV643TSL–MTP, 2012 WL 6084640 (S.D. Miss.
Dec. 6, 2012), this court observed that the Fifth Circuit has been
hesitant to find causes of action arising directly from the
Constitution as § 1983 provides the means for seeking relief
against a state actor who violates the Constitution.

Id. at *1

(citing Hearth, Inc. v. Dep't of Pub. Welfare, 617 F.2d 381,
382–83 (5th Cir. 1980).

See also Mitchell v. City of Hous., 57 F.

App'x 211, No. 02–20287, 2003 WL 147729, at *1 (5th Cir. Jan. 7,
2003) (unpublished table decision) (noting that court has “long
harbored a great reluctance to allow the pursuit of constitutional
causes of action directly”); Berger v. City of New Orleans, 273 F.
3d 1095, No. 01–30200, 2001 WL 1085131, at *1 (5th Cir. Sept. 4,
2001) (unpublished table decision) (“Even the most cursory reading
of our case law demonstrates beyond cavil that we have permitted
prosecution of such actions directly under the Constitution only
when necessitated by a total absence of alternative courses and
‘no other means' existed to seek ‘redress for flagrant violations
of the plaintiff's constitutional rights.’”) (quoting Hearth,
Inc., 617 F.2d at 382).

Plaintiff has not claimed that he has no

other means for obtaining redress.
16

See Mawson v. Univ. of Miss.

Med. Ctr., Civil Action No. 3:11cv574–DPJ–FKB, 2012 WL 6649323, at
*3 (S.D. Miss. Dec. 20, 2012) (rejecting the plaintiff’s s
contention that he “has no alternative avenue of redress for his
injuries” as he “could have brought suit against a proper § 1983
defendant”).

Accordingly, his claims against ASU and IHL, and

against the individual defendants in their official capacities,
for alleged violations of his rights under the First and
Fourteenth Amendments will be dismissed.
To the extent these claims are brought against one or more
individual defendants in their individual capacities, they are due
to be dismissed for other reasons.

Regarding his due process

claim, defendants contend that plaintiff had no constitutional
right to a grievance hearing, but that even if such a right did
exist, plaintiff was afforded a hearing, as acknowledged by his
own allegations.

Indeed, it appears that the grievance to which

plaintiff’s due process claim is directed relates to his
“demotion” from the interim Department Chair position; yet he had
no arguable property interest in that position; and without a
property interest, he can have no viable due process claim.

See

Harrington v. Harris, 118 F.3d 359, 368 (5th Cir.), cert. denied,
522 U.S. 1016, 118 S. Ct. 603, 139 L. Ed. 2d 491 (1997)
(explaining that to succeed with a claim based on substantive due
process in the public employment context, the plaintiff must show
that he had a property interest/right in his employment, and that
17

the public employer's termination of that interest was arbitrary
or capricious); McDonald v. City of Corinth, Tex., 102 F.3d 152,
155 (5th Cir. 1996) (observing that a claim of procedural due
process requires that the plaintiff had a protected property
interest in her employment, and that the termination of the
interest was effected without the requisite procedural
protections).

“An employee has a property interest in his

employment only when a legitimate right to continued employment
exists.”

McDonald, 102 F.3d at 155 (citing Perry v. Sindermann,

408 U.S. 593, 601-02, 92 S.Ct. 2694, 33 L. Ed. 2d 570 (1972)).
Plaintiff’s contract with IHL for his position as interim
Department Chair recited the following:
The Employee further acknowledges and agrees that he/she
has no property interest in the administrative position
named above, serves at the will and pleasure of the
university and may be removed from this administrative
position at any time, with or without cause.
Moreover, his contract for that administrative position ended May
2011.

Thus, there is no arguable basis on which he could claim a

property interest in the position.

Furthermore, while there may

have been a delay in providing a hearing, plaintiff was, in fact,
given a hearing on the grievance relating to the selection of
Butler as Department Chair.

His due process claim will be

dismissed.
The basis for plaintiff’s allegation that defendants’
“wrongful conduct” violated his rights under the First Amendment
18

is not clear.5

He does not identify the defendant or defendants

to whom this allegation refers or the “wrongful conduct” to which
it refers, and he does not indicate in what manner such “wrongful
conduct” by such unspecified defendant or defendants infringed his
rights under the First Amendment.

The First Amendment's Free

Speech Clause – on which this claim is apparently based – protects
public employees from retaliation for protected speech.
Aguilar, 666 F.3d 325, 332 (5th Cir. 2011).

Juarez v.

“To establish a

retaliation claim, plaintiff[] must prove the following elements:
‘(1) the plaintiff suffered an adverse employment decision,
(2) the plaintiff's speech involved a matter of public concern,
(3) the plaintiff's interest in speaking outweighed the
governmental defendant's interest in promoting efficiency, and
(4) the protected speech motivated the defendant's conduct.’”

Id.

(quoting Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)).
“Adverse employment decisions include ‘discharges, demotions,
refusals to hire, refusals to promote, and reprimands.’” Id.

5

Given that Count IV of the complaint purports to also
seek relief based on defendants’ “wrongful conduct, in violation
of Plaintiff’s rights and privileges afforded him under the First
... Amendment,” it is curious that neither defendants’ motion nor
plaintiff’s response brief mentions a First Amendment claim.
However, as it is clear that the complaint does not state a
cognizable claim for relief for violation of the First Amendment,
the claim will be dismissed. See Carroll v. Fort James Corp., 470
F.3d 1171, 1177 (5th Cir. 2006) (court may dismiss sua sponte for
failure to state a claim).
19

(quoting Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.
1999)).
Plaintiff alleges that he suffered retaliation by each of the
individual defendants.

He alleges that Doris McGowan retaliated

against him after he reported to IHL that she had forged his
signature on a pay voucher.

However, he does not allege that he

suffered an adverse employment action at the hands of McGowan.
Plaintiff alleges that Carr expressed disdain for plaintiff’s
having been a whisteblower; but plaintiff does not tie this
allegation to any protected speech.

Likewise, plaintiff alleges

that Butler engaged in retaliatory conduct yet does not even
suggest what plaintiff may have done that prompted her to
retaliate.

He alleges that White took no action in response to

his grievance regarding the selection of Butler for Department
Chair; but this does not qualify as an adverse employment action,
and in any event, plaintiff gives no indication as to reason for
White’s actions (or inaction).

Brown merely refused to meet with

or discuss any issues with plaintiff (which is not an adverse
employment action) because he was angry with him for complaining
to IHL that he had not been given a grievance hearing (which is
not a matter of public concern and hence not protected speech).
Plaintiff’s putative First Amendment claim thus fails to state a
viable claim for relief and will be dismissed.

20

Conclusion6
Based on all of the foregoing, it is ordered that plaintiff’s
complaint in this cause is dismissed with prejudice.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 13th day of June, 2014.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

6

In his response to defendants’ motion, plaintiff argues
in support of a § 1983 claim for gender discrimination based on
the selection of Malinda Butler as Department Chair and the
difference in treatment plaintiff received when he was in the
position of Interim Chair. No such claim has been pled. In the
complaint’s “Count V - Conspiracy” (a claim which plaintiff has
expressly conceded), plaintiff references an alleged conspiracy by
defendants “to deprive Plaintiff of his rights and privileges in
violation of 42 U.S.C. § 1983,” and he further alleges that
“Defendants conspired for the purposes of impeding, hindering,
obstructing or defeating Plaintiff from engaging in the due course
of justice in the State of Mississippi and in the United States,
with the intent to deny him equal protection of the laws, in
violation of 42 U.S.C. § 1985.” The court is at a loss to fathom
what plaintiff intended by these allegations or to what they are
intended to refer; but these statements cannot reasonably be read
as asserting a claim for gender discrimination in the nonselection
of plaintiff as Department Chair or disparate treatment of him and
Butler.
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