Leal v. Univ. of S. Miss.

• Decision Date: 02 April 2020
• Docket Number: NO. 2018-CA-00408-SCT,2018-CA-00408-SCT
• Citation: 296 So.3d 660
• Parties: Dr. Sandra LEAL v. UNIVERSITY OF SOUTHERN MISSISSIPPI and Board of Trustees of State Institutions of Higher Learning
• Court: Mississippi Supreme Court

296 So.3d 660

Dr. Sandra LEAL

v.UNIVERSITY OF SOUTHERN MISSISSIPPI and Board of Trustees of State Institutions of Higher Learning

NO. 2018-CA-00408-SCT

Supreme Court of Mississippi.

April 2, 2020

Rehearing Denied June 11, 2020

ATTORNEY FOR APPELLANT: KIM T. CHAZE, Hattiesburg

ATTORNEY FOR APPELLEES: RICHARD D. NORTON

BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1. Dr. Sandra Leal appeals the Forrest County Circuit Court's grant of summary judgment to the University of Southern Mississippi (USM) and the Board of Trustees of the State Institutions of Higher Learning (IHL). Leal had brought suit against USM and the IHL for breach of contract and disability discrimination. Because Leal has failed to demonstrate any genuine issue of material fact and has failed to demonstrate that USM and the IHL are not entitled to judgment as a matter of law, we affirm the decision of the Forrest County Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶2. Dr. Sandra Leal was a junior faculty member at USM. After spending several years at USM, Leal applied for tenure and promotion in 2012, but, at the recommendation of faculty members, she deferred her application for one year. In September of 2013, she resubmitted her application and materials. On October 4, 2013, her department voted not to recommend her application. Leal was notified of this on October 7, 2013.

¶3. After the departmental review, Shiao Wang, the then-chair of the department, reviewed Leal's application and also determined that she failed to meet the requirements for promotion and tenure. Leal was notified of Wang's decision on October 25, 2013. On November 8, 2013, the College Advisory Committee met and voted not to recommend her application. Leal was notified of this on November 23, 2013. After the College Advisory Committee's review, the then-dean of Leal's college, Patricia Biesiot, reviewed her application and similarly found it deficient. Leal was notified of Biesiot's determination on January 8, 2014. On February 5, 2014, the University Advisory Council voted not to recommend her application. Leal was notified of that decision on February 21, 2014. Each review of her application cited an insufficient number of publications as the primary reason for not recommending Leal's application.

¶4. Following these reviews, in March of 2014, Leal wrote USM's then-provost, Denis Wiesenburg. Leal had suffered from rheumatoid arthritis

throughout her time at USM, but, for the first time, she claimed it as a disability. She requested an additional year to remedy her insufficient number of publications. Both Wiesenburg and USM's president, Rodney Bennett, recommended that Leal's application be denied. Leal was notified of these determinations on March 24, 2014, and April 30, 2014, respectively. Leal sought review of her application by the IHL, and the IHL considered her request and ultimately rejected her application as well.

¶5. Leal filed two lawsuits against USM and the IHL in Forrest County, Mississippi. These suits were consolidated and alleged breach of contract and disability discrimination by USM and the IHL. After discovery, USM and the IHL moved for partial summary judgment on Leal's claims made in her first complaint. The Forrest County Circuit Court granted partial summary judgment on certain claims. Later, USM and the IHL moved for summary judgment on Leal's remaining claims, and the circuit court granted this motion as well. Leal now appeals.

STANDARD OF REVIEW

¶6. This Court reviews challenges to summary judgment de novo, and we view the evidence in the light most favorable to the nonmovant. Johnson v. Goodson , 267 So. 3d 774, 776 (Miss. 2019) (quoting Maness v. K & A Enters. of Miss., LLC , 250 So. 3d 402, 409 (Miss. 2018) ). We apply Mississippi Rule of Civil Procedure 56 and review "the pleadings, depositions, answers to interrogatories and admission on file, together with affidavits, if any," to determine whether there is any genuine issue of material fact and if not, whether the movant is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c).

¶7. We must determine if there are any issues of material fact: facts that "matter[ ] in an outcome determinative sense." Simmons v. Thompson Mach. of Miss., Inc. , 631 So. 2d 798, 801 (Miss. 1994) (emphasis removed) (quoting Shaw v. Burchfield , 481 So. 2d 247, 252 (Miss. 1985) ). Summary judgment is appropriate "where the respondent has failed ‘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.’ " Smith ex rel. Smith v. Gilmore Mem'l Hosp., Inc. , 952 So. 2d 177, 180 (Miss. 2007) (quoting Wilbourn v. Stennett, Wilkinson & Ward , 687 So. 2d 1205, 1214 (Miss. 1996) ). When a motion for summary judgment is made and properly supported, the party opposing summary judgment cannot "rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Miss. R. Civ. P. 56(e).

ISSUES ON APPEAL

¶8. The issues on appeal are outlined below:

I. Were material facts in dispute regarding Leal's claims under the Rehabilitation Act and, if not, were the IHL and USM entitled to judgment as a matter of law on her disability-related claims?

II. Were material facts disputed regarding Leal's claim that her employment contracts were breached and, if not, were the IHL and USM entitled to judgment as a matter of law on her contractual claims?

III. Were material facts disputed regarding Leal's claims that she was equitably entitled to employment and promotion and, if not, are the IHL and USM entitled to judgment as a matter of law on her contractual claims?

Because Leal has failed to provide evidentiary support for any of her claims, we do not address the IHL's and USM's claims of discretionary-function immunity.

ANALYSIS

I. Were material facts in dispute regarding Leal's claims under the Rehabilitation Act and, if not, were the IHL and USM entitled to judgment as a matter of law on her disability-related claims?

¶9. Leal alleges throughout her brief varying iterations of claims related to discriminatory and retaliatory treatment by the IHL and USM. She makes these claims under the federal Rehabilitation Act, 29 U.S.C. §§ 701 – 18 (2012). The Rehabilitation Act "prohibits discrimination against the disabled by recipients of federal funding, including private organization[s]." Barnes v. Gorman , 536 U.S. 181, 185, 122 S. Ct. 2097, 153 L. Ed. 2d 230 (2002). The Rehabilitation Act also prohibits retaliation against individuals engaged in protected activities. 28 C.F.R. § 42.503 (current through Mar. 12, 2020), https://gov.ecfr.io/cgi-bin/text-idx?SID=c8b50b2a7db0f45824c0d9d5f667d0aa & mc=true & node=se28.1.42_1503 & rgn=div8. Claims arising from federal law related to disparate treatment are subject to the burden-shifting framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Raytheon Co. v. Hernandez , 540 U.S. 44, 49 n.3, 124 S. Ct. 513, 157 L. Ed. 2d. 357 (2003). Therefore, to survive summary judgment, Leal would have to have proffered sufficient evidence to demonstrate a prima facie case of a violation of the Rehabilitation Act. Id. at 50, 124 S. Ct. 513.

A. Leal's Discrimination Claim

¶10. To make a prima facie case of discrimination, Leal needed to establish facts showing (1) that she had a disability; (2) that other than the disability she was qualified for the position she sought; (3) that she worked for a program receiving federal financial assistance; and (4) that she was discriminated against solely because of her disability. 29 U.S.C. § 794 (2012) ; see also Cohen v. Univ. of Tex. Health Sci. Cent. , 557 F. App'x 273, 277 (5th Cir. 2014) (quoting Washburn v. Harvey , 504 F.3d 505, 508 (5th Cir. 2007) ).

¶11. First, Leal must show that she had a disability. For purposes of determining a violation, the Rehabilitation Act incorporates the substantive standards of the Americans with Disabilities Act (ADA), 29 U.S.C. § 794 (2012). Under the ADA, "disability" is defined as "a physical or mental impairment

that substantially limits one or more major life activities" or "a record of such an impairment" or "being regarded as having such an impairment." 42 U.S.C. § 12102 (2012).

¶12. Leal identified rheumatoid arthritis

as her alleged disability. Leal represents that USM and the IHL have agreed in depositions and before the Equal Employment Opportunity Commission, that Leal suffers from this disability. This is a dubious assertion, given that, while USM and the IHL did agree that Leal suffers from rheumatoid arthritis, both strenuously contend that she has failed to adduce any evidence that the rheumatoid arthritis rose to the level of a disability under the Rehabilitation Act and the ADA.¹

¶13. Leal's medical records reveal that she has limited joint mobility in her arms and shoulders and suffers from fatigue. The medical records fail to establish that she has been "substantially limit[ed in] one or major life activities." 42 U.S.C. § 12102 (2012). These medical records do not disclose her condition resulted in an inability to perform any life activities, let alone major life activities.

¶14. Another medical record contradicts her assertions. Dr. Imad Bitar, a rheumatologist, documented Leal's joint immobility while opining that her condition could cause her to miss work periodically but that she could perform all essential job functions and did not need to work a reduced or partial schedule.

¶15. We agree with the trial court that there is no evidence to support her claim of an ADA disability. Thus she has failed to make a prima facie case under the Rehabilitation Act. Because Leal did not meet the elements for a prima facie case, we affirm the trial judge's...