Gorum v. Sessoms

• Decision Date: 27 March 2009
• Docket Number: No. 08-1741.,08-1741.
• Citation: 561 F.3d 179
• Parties: Wendell GORUM, Ph.D., Appellant v. Allen L. SESSOMS, Ph.D., Board of Trustees of Delaware State University.
• Court: U.S. Court of Appeals — Third Circuit

561 F.3d 179

Wendell GORUM, Ph.D., Appellant v. Allen L. SESSOMS, Ph.D., Board of Trustees of Delaware State University.

No. 08-1741.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) January 30, 2009.

Opinion Filed: March 27, 2009.

Gregg L. Zeff, Esquire, Niev E. Lindbloom, Esquire, Frost & Zeff, Philadelphia, PA, for Appellant.

Robert L. Duston, Esquire, Saul Ewing, Washington, DC, for Appellees.

Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Wendell Gorum, Ph.D., appeals the District Court's grant of summary judgment in favor of Allen Sessoms, Ph.D., President of Delaware State University ("DSU"), and the DSU Board of Trustees (the "Board").¹ Gorum alleged that Sessoms retaliated against him for engaging in speech and association protected by the First Amendment to the United States Constitution.² For the reasons that follow, we affirm the judgment of the District Court.

I. Factual and Procedural Background

DSU is a public institution governed by the Board. Sessoms served as its President from 2003 until 2008. Gorum was a tenured professor at DSU from 1989 until his dismissal in 2005. He chaired the Mass Communications Department from 1997 until 2004. As a DSU professor, Gorum sat on various administrative committees, including the Faculty Senate and Student Affairs Committee, and served as an advisor to the DSU chapter of the Alpha Phi Alpha fraternity.

In January 2004, the DSU registrar began an audit of recently submitted grade changes after learning of a grade irregularity in the transcript of a student athlete. Through this audit, the registrar determined that Gorum, without the professor-of-record's permission, had changed withdrawals, incompletes, and failing grades to passing grades for 48 students in the Mass Communications Department. When confronted with these findings, Gorum admitted his actions, but asserted that he had received sufficient authorization to make the changes. He also claimed that grade alterations by department chairs were common at DSU. Unconvinced, Sessoms, in consultation with other administrators at DSU, began dismissal proceedings and suspended Gorum.

Gorum responded by exercising his right under the Collective Bargaining Agreement between DSU and its faculty to request a hearing before an Ad Hoc Disciplinary Committee. The Committee's review included pre-hearing discovery, extensive hearings, and post-hearing briefing with attorney representation. The Committee detailed its findings in a report, which concluded that "DSU has proven by clear and convincing evidence" that Gorum violated the Collective Bargaining Agreement. The report specifically noted that Gorum

[1] misrepresented information on [change-of-grade forms] by signing as instructor for courses that he did not actually teach ... [; 2] did not obtain the permission or approval of the instructor-of-record to execute modification[s] of grade[s] ... [; 3] knew that DSU practices and procedures did not include signing for an instructor-of-record without indicating this fact... [; 4] arbitrarily assigned grades to students for courses they were not registered in ... [; 5] retroactively registered and assigned grades to students for classes taught by other instructors ... [; 6] awarded grades to some students in classes that the students had never attended ... [; and 7] practiced favoritism, whereby selected students, especially athletes[,] obtained grades in core courses in their major, without necessarily completing required course material.

The report also remarked that "Dr. Gorum's actions undermine the very tenets of the educational profession and rise to a level deserving condemnation by the academic community."

Despite the damning nature of these findings, the Committee did not recommend terminating Gorum because of what it labeled "an atmosphere of pervasive laxity, lack of rule enforcement, and the absence of accountability at all levels [of DSU] that perpetuated and encouraged random and uncontrolled manipulations of student grades." Within this atmosphere, the Committee believed that "Dr. Gorum's case is the tip of the iceberg, and he is, in fact, the scapegoat (albeit a blamable scapegoat)." The Committee therefore recommended that Gorum face only a two-year unpaid suspension, loss of his chair position, and a probationary period thereafter.

Taking note of the Committee's views, President Sessoms nevertheless proceeded with a dismissal action against Gorum. Writing to the Board, he opined that terminating Gorum's employment was "the only appropriate sanction" for his "unprofessional" and "highly reprehensible" conduct. Sessoms addressed the Committee's concern that Gorum was a scapegoat by stating: "If there are other professors who have engaged in similar conduct, those cases will be addressed. But nothing in the allegations of past practice comes anywhere close to the reprehensible actions of Dr. Gorum."

The Board, exercising its authority under § 10.4.14 of the Collective Bargaining Agreement, unanimously agreed with Sessoms and voted to dismiss Gorum. Before making its decision, the Board reviewed the report of the Committee, the parties' post-hearing briefs, and had access to the transcript and exhibits from the hearings. Gorum was also given an opportunity to address the Board, which he did not accept.

Nearly two years after his dismissal, Gorum filed suit in the United States District Court for the District of Delaware. He claimed that Sessoms's decision to recommend dismissing him—and not merely suspending him as the Committee had advised—was a retaliatory action intended to punish him for engaging in speech and association protected by the First Amendment. Gorum specifically alleged that Sessoms recommended terminating his employment because of views he expressed in three instances.

First, Gorum stated that his dismissal was retaliation for his objection to the selection of Sessoms as University President in 2003. Gorum explained that he had voiced opposition before the Faculty Senate to selecting Sessoms and ending the search for University President, and he suggested that Sessoms was aware of his position.

Second, Gorum claimed that Sessoms had punished him for acting as an advisor to DaShaun Morris, an NCAA All-American Division I-AA football player who violated DSU's zero-tolerance policy against weapons possession in 2002. Gorum stated that his authorship of the DSU disciplinary code had made him "the de facto advisor to all DSU students with disciplinary problems," including Morris. Gorum's Op. Br. at 4. He noted that he helped Morris draft an appeal letter, retained an attorney for Morris, and served as an advisor at Morris's disciplinary hearing. He also used his position as department chair to intercede on Morris's behalf with the then-President of the University, William DeLauder, Ph.D. Gorum argued that these acts placed him out of favor with University administrators, including Sessoms.

Third, Gorum contended that the decision to dismiss him resulted from his recission of an invitation to Sessoms to speak at the 2004 Alpha Phi Alpha Martin Luther King, Jr. Prayer Breakfast. According to his complaint, Gorum served as chair of the event's speakers committee and instructed a member of the committee to revoke an invitation to speak that the committee member mistakenly made to Sessoms after the committee already had selected another speaker. Gorum noted that he later heard from several people that Sessoms "was upset about the cancellation." Gorum's Op. Br. at 6.

The District Court rejected Gorum's claims and granted summary judgment in favor of Sessoms and the Board. The Court, after concluding that Gorum's allegations were timely and properly pleaded, held that Gorum failed to "adduce sufficient record evidence to raise a genuine issue that: (1) his activities were protected by the First Amendment, and (2) the protected activity was a substantial factor in the alleged retaliatory action." Gorum, 2008 WL 399641, at *3 (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006)). In particular, the Court determined that the three speech-related instances presented by Gorum occurred within the scope of his "official duties" and were not protected by the First Amendment. It also ruled that Gorum had failed to create a genuine issue that Sessoms knew of his speech during the presidential selection process or his involvement with Morris's appeal. See id. at *3-6. The Court held as well that Sessoms and the Board had shown that "Sessoms would have recommended Gorum's termination to the Board even if Gorum had not engaged in any activity protected under the First Amendment." Id. at *6. This appeal followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.

When the District Court grants a motion for summary judgment, our review is plenary. See Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 416 (3d Cir.2008). Summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. See DL Res., Inc. v. First-Energy Solutions Corp., 506 F.3d 209, 216 (3d Cir.2007). We may affirm or vacate the District Court's judgment on any grounds supported by the record. In re Teleglobe Commc'ns Corp., 493 F.3d 345, 385 (3d Cir.2007).

III. Discussion

To state a First Amendment retaliation claim, a public employee plaintiff must allege that his activity is protected by the First Amendment, and that the protected activity was a substantial factor in the alleged retaliatory action. See Hill, 455 F.3d at 241. "The...