Koch v. Rugg

• Citation: 221 F.3d 1283
• Decision Date: 11 August 2000
• Docket Number: No. 98-9337,98-9337
• Parties: (11th Cir. 2000) Nadine S. KOCH, Dr., Plaintiff-Appellee, v. Edwin A. RUGG, Dr., individually and in his capacity as Vice President of Academic Affairs of Kennesaw State College; Don Forrester, Dr., individually and in his capacity as Acting Dean of the School of Arts, Humanities and Social Sciences of Kennesaw State College, Defendants-Appellants,
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1283

221 F.3d 1283 (11th Cir. 2000)

Nadine S. KOCH, Dr., Plaintiff-Appellee, v. Edwin A. RUGG, Dr., individually and in his capacity as Vice President of Academic Affairs of Kennesaw State College; Don Forrester, Dr., individually and in his capacity as Acting Dean of the School of Arts, Humanities and Social Sciences of Kennesaw State College, Defendants-Appellants,

No. 98-9337.

United States Court of Appeals Eleventh Circuit.

Aug. 11, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia.(No. 96-01458-1-CV-WCO), William C. O'Kelley, Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS^*, District Judge.

BIRCH, Circuit Judge:

This interlocutory appeal presents the issue of whether this court has jurisdiction to consider the denial of qualified immunity to administrators in a state university system for their decision not to employ a highly qualified Jewish professor for a temporary full-time teaching position over lesser qualified, non-Jewish temporary full-time instructors. In denying qualified immunity to the administrators, the district judge determined that questions concerning the administrators' intentional racial discrimination in filling the temporary faculty positions prevented qualified-immunity protection. Because we lack jurisdiction to consider this interlocutory appeal, we dismiss it and remand the case for further proceedings in the district court.

I. BACKGROUND

Plaintiff-appellee, Dr. Nadine S. Koch, who is Jewish, was a tenured political science professor at California State University in Los Angeles, when she moved to Atlanta in 1994 following her husband's employment relocation. Dr. Koch took a leave of absence without pay from California State University and sought academic employment in the Atlanta area. From September, 1994, to December, 1994, she was employed as a part-time or temporary professor in the Department of Political Science and International Affairs ("Political Science Department") of Kennesaw State University ("KSU"), a component of the University System of Georgia that is operated by defendant, Board of Regents of the University System of Georgia.

In December, 1994, Dr. Christina Jeffrey, a tenured professor in the KSU Political Science Department, took a projected two-year leave of absence following her nomination to be the House of Representatives Historian under Speaker Newt Gingrich. Dr. Koch, who had impressive credentials and experience,¹ was hired as a temporary full-time professor to replace Dr. Jeffrey in the Political Science Department. Dr. Jeffrey's nomination for House Historian was not approved, and she returned to KSU in early 1995 to resume her teaching responsibilities because she was a tenured professor. Consequently, Dr. Koch was no longer needed to replace Dr. Jeffrey for the 1995-1996 school year.

The KSU Political Science Department budget allotted two full-time instructor positions that were filled on a temporary basis annually. For more than three years prior to the 1995-1996 academic year, these positions had been held by Kerwin Swint and Michael Swinford, neither of whom possessed a Ph.D. degree in early 1995, when Dr. Koch applied for one of these positions.² Dr. Koch was not selected; Swint and Swinford were rehired for the two temporary full-time teaching positions.

Consequently, Dr. Koch requested a meeting with defendants-appellants Dr. Edwin A. Rugg, Vice President of Academic Affairs, and Dr. Don Forrester, Acting Dean of the School of Arts, Humanities and Social Sciences, concerning her non-selection.³ She challenged the rehiring of either Swint or Swinford over her because of the KSU three-year policy. This policy provides that the contract of any temporary full-time faculty member who has been employed at KSU for more than three years will not be renewed.⁴

Following this meeting with Dr. Koch, Vice President Rugg met concerning Dr. Koch's complaints with defendant Dr. Helen Ridley, Chair of the Political Science Department,⁵ who had selected Swint and Swinford for the two temporary full-time instructor positions in the department.⁶ At this meeting, Chair Ridley informed Vice President Rugg that Dr. Jeffrey and former Chair Jarrell had told her "that Nadine was going to sue us and she was going to join the Jewish group and sue us on the basis of religious discrimination."⁷ Deposition of Helen Ridley at 62. Dr. Ridley testified that Vice President Rugg "[j]ust ... shook his head" in reaction. Id. He also advised her that he was going to re-open the application process for the two temporary full-time Political Science faculty positions and explained that "if we were going to make a mistake, let's make a mistake on bending over backward, to not g[i]ve the appearance that we're being unfair."⁸ Id.

On June 16, 1995, Vice President Rugg sent a memorandum concerning the selection of temporary Political Science faculty for the 1995-1996 year to Dean Forrester and Chair Ridley. Acknowledging that "the recent selection process at the department and school levels for the filling of the two temporary positions ha[s] been challenged as unfair and unjust," Vice President Rugg explained the selection procedure, including departmental faculty interviews and evaluations, that would be followed to fill the two temporary full-time positions with two of the three temporary, full-time faculty members from the previous academic year.⁹ R2-25-Exh. G-1. On June 19, 1995, Chair Ridley sent a memorandum to Dr. Koch, Swint, and Swinford and informed them that the selection process for the two temporary full-time positions had been re-opened because the previous selection had "been challenged as unfair and unjust" and that they were "invited to compete for the two positions" by applying and interviewing with all of the full-time faculty as a group. Id. at Exh. H-1. She advised that "[w]ritten evaluations will be collected from all who evaluate credentials and interview the candidates and will serve as supporting documentation for the final selection decisions and subsequent appointment recommendations from the acting chair and interim dean to the academic vice-president." Id. at 2.

In discussing the re-opening of the selection process for the temporary full-time positions with the permanent faculty, Chair Ridley told them that the reason that the process was re-opened with departmental interviews of the three applicants was because Dr. Koch had complained and there was concern that she might sue.¹⁰ See Deposition of Willoughby Jarrell at 72-73. The interviews of the applicants with the full permanent faculty were scheduled on June 29, 1995, and July 3, 1995. Dr. Carol Pierannunzi, a tenured associate professor in the KSU Political Science Department, testified that, at a subsequent departmental meeting, Dr. Jeffrey stated that "we ... were protecting ourselves from lawsuit." Id. at 28. Neither Dean Forrester nor Chair Ridley responded to this statement by Dr. Jeffrey. See id. Regarding her reaction to Dr. Jeffrey's comment that Dr. Koch would sue, Dr. Pierannunzi testified: "I stated that Nadine had never said anything like that, never had gone around threatening to sue and I was very irritated about that." Id.

The one-page evaluation of each of the three candidates for the two temporary full-time political science positions following their respective interviews provided space for the permanent faculty "to write comments about strengths and weaknesses of the candidates," but the form did not afford them the opportunity to rank the candidates or to address the job description appropriately.¹¹ Id. at 25. Nevertheless, the typically strong, positive comments regarding Dr. Koch from members of the permanent faculty indicate her ranking by them relative to the other two candidates:

Excellent teaching prep & success

Ability to work constructively with students & colleagues

Excellent organization & communication skills

Excellent in research & publications & great writing

She has more knowledge of applying technology & content than other candidates

Clearly heads & shoulders above the other two candidates as expected because of her rank & experience edge.

Dept. can benefit greatly from having her on our faculty.

R2-25-Exh. I (former Chair Jarrell) (emphasis added).

Dr. Koch's creative teaching methods are very admirable. She brings great strength to KSC in this area especially since the "scaffolding" model obtained FIPSE support.

Dr. Koch appears well qualified for this position.

Id. (Dr. Zebich-Knos). In addition to her prior achievements, Dr. Koch's accomplishments in her short time at KSU prior to her application for one of the two temporary full-time positions are noteworthy.¹²

Following the interviews of the three candidates for the two temporary full-time teaching positions, the permanent faculty met with Dean Forrester and Chair Ridley; former Chair Jarrell asked if the faculty could vote on the applicants. This request was denied, and Chair Ridley stated that their "comments would be looked at and that she would make the decision." Deposition of Carol Pierannunzi at 26. In a July 3, 1995, letter to Dean Forrester, four permanent faculty members protested the process used to fill the two temporary full-time positions for 1995- 1996 and specifically disapproved the lack of relevant faculty evaluation in the review procedure.¹³

On July 5, 1995, Chair Ridley sent a memorandum to Dean Forrester and stated that, after complying with Vice-President Rugg's suggested procedure, which included consultation with the political science faculty, she recommended the appointments of Swint and Swinford for the two temporary full-time positions in the Political Science Department.¹⁴ The virtually unanimous deficiency comment of the permanent political science faculty in evaluating Swinford, however, was that he did not yet have a doctoral degree or a projected date for...