Ray v. Montana Tech of Univer. of Montana

• Decision Date: 30 January 2007
• Docket Number: No. 05-234.,05-234.
• Citation: 2007 MT 21,152 P.3d 122,335 Mont. 367
• Parties: John W. RAY, Plaintiff and Appellant, v. MONTANA TECH OF the UNIVERSITY OF MONTANA, W. Franklin Gilmore, Daniel Bradley, Douglas Abbott, John Hintz, and Margaret Peterson, Defendants and Respondents.
• Court: Montana Supreme Court

152 P.3d 122

2007 MT 21

335 Mont. 367

John W. RAY, Plaintiff and Appellant, v. MONTANA TECH OF the UNIVERSITY OF MONTANA, W. Franklin Gilmore, Daniel Bradley, Douglas Abbott, John Hintz, and Margaret Peterson, Defendants and Respondents.

No. 05-234.

Supreme Court of Montana.

Submitted on Briefs January 24, 2006.

Decided January 30, 2007.

For Appellant: James P. Reynolds, Reynolds, Motl & Sherwood, Helena, Montana.

For Respondents: Amy D. Christensen and Elizabeth S. Baker, Hughes, Kellner, Sullivan & Alke, Helena, Montana, David Aronofsky, Legal Counsel, University of Montana, Missoula, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 John W. Ray (Ray) appeals two District Court Orders entered in the First Judicial District, Lewis & Clark County. The first affirmed the Montana Human Rights Commission's dismissal of his discrimination claims. The second order granted summary judgment to Montana Tech and the individual defendants, dismissing Ray's claims brought under 42 U.S.C. § 1983, wherein he alleged that his civil rights were violated when his contract as a department head at Montana Tech was not renewed. We affirm.

¶ 2 Ray has stated the issues he brings on appeal as follows:

¶ 3 1. Did Montana Tech discriminate against Ray because of his political beliefs and in violation of his constitutional right to freedom of speech?

¶ 4 2. Did Montana Tech discriminate against Ray on the basis of his marital status?

¶ 5 3. Did Montana Tech violate Ray's right to due process?

BACKGROUND

¶ 6 Ray joined the Montana Tech faculty in 1975 and began serving as a full professor of humanities and social sciences in 1990, a position he continued to hold at the time he commenced this litigation. Ray was named program manager of liberal studies in August 1997. In August 1998, Ray was named head of a newly created Liberal Studies Department, a move which increased his salary by $2,500 per year. As department head, Ray's immediate supervisors were Douglas Abbott (Abbott), dean of the College of Humanities, Social Sciences and Information Technology, and Daniel J. Bradley (Bradley), academic vice chancellor.

¶ 7 Ray and Bradley had a history of conflict. In June 1998, while petroleum engineering dean, Bradley discussed with liberal studies faculty member Henry Gonshak (Gonshak) the possibility of Gonshak teaching a new course for engineering students. Ray, as program manager, angrily objected to Bradley's failure to initiate the discussion with him, and also made these complaints to the faculty senate after becoming department head.

¶ 8 In early 1999, Ray voted against Gonshak's promotion to full professor, even though a consensus of the department supported the promotion. Later, Ray wrote a letter expressing tepid support for Gonshak. The record indicates Bradley, Abbott, and Gilmore, Montana Tech chancellor, believed that Ray's actions suggested retaliation for Gonshak's previous cooperation with Bradley.

¶ 9 In February 1999, Ray challenged Montana Tech's authority to require faculty members to teach evening classes. On another occasion, Ray questioned the legal basis of a request by Bradley and Abbott to investigate complaints alleging that a faculty member came to classes drunk. Gilmore, Bradley and Abbott considered Ray's handling of these matters to be inappropriate.

¶ 10 Also, in what Bradley and Abbott considered indicative of Ray's adversarial approach to the Montana Tech administration, Ray asked for and received permission to tape two meetings with administrators, saying that taping would provide a more accurate record of the meetings.

¶ 11 In March 1999, Roberta Ray (Roberta), Ray's wife and a member of Montana Tech's liberal studies faculty, suffered an ankle injury. During a telephone conversation between Roberta and Abbott concerning relocating Roberta's office to a building with disability access, Roberta hung up on Abbott. When Abbott called her back, Ray answered and took up the argument on behalf of Roberta. Abbott interrupted Ray, saying he needed to talk to Ray as department head, not as Roberta's husband.

¶ 12 Ray was involved in environmental advocacy through various organizations, ballot initiatives, and public speaking engagements. In April 1999, Ray gave a talk at a mine waste technology conference criticizing the mining industry and the environmental insensitivity of engineering students. Following the talk, multiple audience members complained to Gilmore, urging him to fire or discipline Ray. Gilmore agreed with some of the comments and referred to Ray as an "environmental bigot." Gilmore also received a complaint from one audience member concerning a talk by another speaker associated with Montana Tech, but did not investigate this complaint. Although he did take some actions to investigate Ray's comments at the conference, Gilmore took no adverse action against him.

¶ 13 Also, while Ray served as department head, a long-standing conflict between him and Joanne Cortese, head of the Professional Technical Communications Department, continued. In October 1998, Bradley and Abbott met with both Ray and Cortese to discuss a possible resolution of this conflict. Bradley ordered that Ray and Cortese take initial steps to resolve their differences. Ray did not do so. Rather, he complained to the faculty senate. Gilmore, Bradley and Abbott considered Ray's complaint inaccurate and felt that he should not have raised the issue with the faculty senate.

¶ 14 Another meeting regarding the on-going interdepartmental conflict took place in June 1999, with Bradley, Abbott, Ray and Cortese attending. Bradley and Abbott proposed a possible solution involving physical relocation and faculty realignments. Ray agreed to take the proposals to his department for discussion, causing Gilmore to comment that Ray "had grown" in his position as department head. Ray discussed the proposals in the Liberal Studies Department, making clear his opposition. He also sent an email to his supervisors on June 30, 1999, in which he likened the proposals to harassment and threatened to mobilize students and others to oppose the relocation proposal at every step. Gilmore, Bradley and Abbott considered the content of this email to be inappropriate for a department head.

¶ 15 Bradley and Abbott met to discuss whether to recommend renewal of Ray's position as department head. Abbott prepared a draft evaluation in the event they decided to recommend Ray's renewal. However, in this draft he noted that Ray had difficulty in distinguishing between his role as department head and his role as husband to another department member. Bradley and Abbott did not discuss the contents of Abbott's draft evaluation recommending renewal of Ray as department head. Rather, they decided they would not recommend that Ray's contract as a department head be renewed. At this meeting they did not discuss or consider Ray's marital status or his environmental activism. Abbott did not give a copy of the draft evaluation, or any other formal evaluation, to Ray.

¶ 16 At a July 1999 meeting, Gilmore, Bradley, and Abbott, along with John Hintz, vice chancellor for administration, and Maggie Peterson, human resources director, discussed concerns regarding Ray's performance as department head. Specifically, they discussed Ray's handling of the on-going conflict between departments, the night class scheduling issue, his reluctance to investigate an allegedly drunk faculty member, his taping of meetings, his reaction to Bradley's discussion with Gonshak, his subsequent treatment of Gonshak, and his e-mail of June 30, 1999.

¶ 17 Abbott later gave conflicting testimony about whether Ray's marital status was discussed at the July 1999 meeting. However, all of the other individuals at the meeting stated that Ray's marital status was not discussed. Nor was Ray's environmental activism discussed at this meeting. The group decided not to renew Ray as department head. Abbott wrote a letter the same day informing Ray of this decision.

¶ 18 Department heads at Montana Tech signed one-year contracts. Although such contracts were typically renewed for successive one-year terms of five to seven years, the decision was made not to renew Ray after he had served in the position for less than a year. He was the only department head not renewed at that time.

¶ 19 While department heads were often renewed for several successive years, the Policy and Procedures Manual of the Mont. Bd. of Regents of Higher Educ., which applies at Montana Tech, provided that academic administrators serve at the discretion of the chancellor. Also, Ray's appointment as a department head was governed by an express policy prohibiting a guarantee of multi-year renewal of such positions.

¶ 20 Neither Ray's interim nor permanent replacements were environmental activists or married to other department members.

¶ 21 Ray filed two complaints with the Department of Labor and Industry, Human Rights Commission. One complaint alleged discrimination against him because of his political beliefs and the other alleged discrimination based on marital status. These complaints were consolidated for hearing. The hearing examiner filed a Final Agency Decision in January 2002 wherein he determined that both of Ray's claims should be dismissed. The hearing examiner found that although Ray established a prima facie case of both political belief and marital status discrimination, Montana Tech had established legitimate business reasons for Ray's non-renewal. The hearing examiner then determined that Ray failed to prove that the reasons given by Montana Tech for his nonrenewal as department head were pretextual. The Human Rights Commission affirmed the Final Agency Decision in May 2002.

¶ 22 Ray then filed a complaint in District Court seeking review of the Commission's decision. He later amended his complaint, adding counts which alleged violation of his right to freedom of speech and the...