588 F.3d 282 (5th Cir. 2009), 08-60978, DePree v. Saunders

Docket Nº:08-60978.
Citation:588 F.3d 282
Opinion Judge:EDITH H. JONES, Chief Judge:
Party Name:Chauncey M. DePREE, Jr., Plaintiff-Appellant, v. Martha SAUNDERS, Individually and as President of the University of Southern Mississippi; Darrell J. Grimes, Individually as a former Provost, University of Southern Mississippi; Alvin J. Williams, Individually and as Interim Dean of the College of Business, University of Southern Mississippi; Steven
Attorney:Stanton J. Fountain, Jr., Biloxi, MS, Cyrus Clifford Barger, Rebecca Kathryn Jude (argued), Jude & Jude, Hattiesburg, MS, for DePree. John Simeon Hooks, Adams & Reese, L.L.P., Jackson, MS, Mary Ann Connell, Mayo Mallette, PLLC, Oxford, MS, Lee Partee Gore (argued), University of Southern Mississi...
Judge Panel:Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit Judges.
Case Date:November 12, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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588 F.3d 282 (5th Cir. 2009)

Chauncey M. DePREE, Jr., Plaintiff-Appellant,

v.

Martha SAUNDERS, Individually and as President of the University of Southern Mississippi; Darrell J. Grimes, Individually as a former Provost, University of Southern Mississippi; Alvin J. Williams, Individually and as Interim Dean of the College of Business, University of Southern Mississippi; Steven Jackson, Individually and as Interim Director of the School of Professional Accountancy and Information Systems; Stanley X. Lewis, Individually and as former Director of the School of Professional Accountancy and Systems; Farhang Niroomand, Individually and as former Associate of Dean of the College of Business; D. Harold Doty, Individually and as former Dean of the College of Business; Patricia Munn, Individually; John Albert Brown, Individually; James Henderson, Individually; Mary Anderson, Individually; Roderick Posey, Individually; Charles Jordan, Individually; Gwendolyn Pate, Individually; John Does 1-80, Defendants-Appellees.

No. 08-60978.

United States Court of Appeals, Fifth Circuit.

November 12, 2009

As Revised Nov. 13, 2009.

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Stanton J. Fountain, Jr., Biloxi, MS, Cyrus Clifford Barger, Rebecca Kathryn Jude (argued), Jude & Jude, Hattiesburg, MS, for DePree.

John Simeon Hooks, Adams & Reese, L.L.P., Jackson, MS, Mary Ann Connell, Mayo Mallette, PLLC, Oxford, MS, Lee Partee Gore (argued), University of Southern Mississippi, Hattiesburg, MS, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit Judges.

EDITH H. JONES, Chief Judge:

Dr. DePree, a tenured professor, sued the University of Southern Mississippi's president and various administrators and faculty members (" Appellees") after he was removed from teaching duties in August 2007 and evicted from his office in the College of Business. The district court granted summary judgment in favor of the Appellees and denied DePree's motion for temporary and permanent injunctive relief. On appeal, we AFFIRM the judgment in favor of the individual defendants but REVERSE and REMAND for further consideration of injunctive relief.

BACKGROUND

In August 2007, Dr. Martha D. Saunders, the University's president, received a letter from Alvin J. Williams, Interim Dean of the College of Business. The letter stated that, " Dr. DePree has engaged in behaviors that have severely constrained the capacity of SAIS [School of Accountancy and Information Systems] and the College of Business" and that DePree had helped to create " an environment in which faculty members and students do not feel safe to go about their usual business." Williams described specific and ongoing instances of what he perceived to be

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DePree's negative and disruptive behavior. Williams also asserted that DePree was the only Accounting faculty member who had failed to " engage in the scholarly or professional activities necessary to be labeled ‘ academically-qualified’ or ‘ professionally-qualified’ by the University's accrediting agency, AACSB [Association to Advance Collegiate Schools of Business]." Enclosed with this letter were eight other letters from professors who described DePree's disruptive and intimidating behavior.

Saunders wrote to DePree that she was referring the complaints to the Provost for further proceedings and was relieving DePree of all teaching functions and service obligations to the University. He was instructed not to enter the business school except to retrieve personal items, but he should continue his research activities with access to the University computer system and library. At Saunders's request, the Provost directed the university Ombudsman to investigate all charges against DePree.

DePree filed suit within weeks of receiving the letter. He asserted that the Appellees retaliated against him because he maintains a website that is critical of the University and some of its faculty and administrators and because he complained to the accreditation agency (AACSB) about the school. DePree alleged First Amendment retaliation, Due Process violations, and various state law claims. The district court denied his request for a TRO.

Pursuant to the University Ombudsman's recommendation issued in a December report, Saunders advised DePree that the University intended to enlist the services of a mental health professional to assess his fitness to teach; that he had to produce sufficient scholarly work to satisfy independent professionals; and that the restrictions in her previous letter would remain in place. To this court's knowledge, the University has taken no further action since that time. DePree's pay, benefits, title and tenure have remained as they were before these events occurred. DePree, however, has refused to undergo a mental health evaluation or to comply with the professional research requirements.

The district court granted the Appellees' motion for summary judgment. The court held that DePree failed to show a constitutional violation because he had not been subjected to an adverse employment action and did not have a protectible property interest in teaching as opposed to research. The court also rejected DePree's state law claims on the merits and, alternatively, on the basis of state law qualified immunity. DePree has appealed.

DISCUSSION

This court reviews the district court's grant of summary judgment de novo, applying the same standards as the district court. Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 859-60 (5th Cir.2004). Summary judgment is warranted if " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). We address DePree's constitutional claims...

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