Colston v. Ala. Agric. & Mech. Univ. (In re Hugine)

• Decision Date: 17 March 2017
• Docket Number: 1130428
• Citation: 256 So.3d 30
• Parties: EX PARTE Andrew HUGINE, Jr., et al. (In re: Regina Colston v. Alabama Agricultural and Mechanical University et al.)
• Court: Alabama Supreme Court

256 So.3d 30

EX PARTE Andrew HUGINE, Jr., et al.

(In re: Regina Colston

v.Alabama Agricultural and Mechanical University et al.)

1130428

Supreme Court of Alabama.

March 17, 2017

Rehearing Denied January 12, 2018

Drayton Nabors, Jr., of Maynard, Cooper & Gale, P.C., Birmingham; William R. Lunsford and Matthew B. Reeves of Maynard, Cooper & Gale, P.C., Huntsville; and Angela Redmond Debro, gen. counsel, Alabama A & M University, Normal, for petitioners.

John A. Wilmer and Patricia Mandt Prather of Wilmer & Lee, P.A., Huntsville; and Sam Heldman of The Gardner Firm, Mobile, for respondent.

MURDOCK, Justice.

Andrew Hugine, Jr., Ph.D., Daniel Wims, Ph.D., and Mattie Thomas, Ph.D., petition this Court for a writ of mandamus directing the Madison Circuit Court to vacate its December 11, 2013, order that denied their requests for qualified immunity and State-agent immunity from all claims filed against them in their individual capacities by Regina Colston in an action stemming from the termination of Colston's employment at Alabama Agricultural and Mechanical University ("the University") and to enter a summary judgment in their favor. We grant the petition and issue the writ.

I. Facts and Procedural History

In 1979, Colston was hired as an instructor at the University to teach telecommunications for the School of Arts and Sciences in the Department of English, Foreign Languages, and Telecommunications. She taught broadcast journalism and other similar classes at the University continuously for the next 32 years. Colston holds a bachelor of arts degree in journalism and a master of arts degree in broadcast, film, and communication, both of which she earned from the University of Alabama. Colston has served multiple terms as an officer, and two terms as president, of the University's chapter of the Alabama Education Association ("the AEA"). L. Shefton Riggins, Ph.D., who served two terms on the University's Board of Trustees ("the Board"), stated in an affidavit that, in her representative capacity with the AEA, "Ms. Colston was well-known among the Board members as a strong advocate for the faculty and staff."

The University first hired Thomas as an English instructor in 1964. She was promoted to full professor in 1984. From 1978 until her retirement in July 2010, Thomas served as the chairperson of the University's Department of English, Foreign Languages, and Telecommunications. As the chairperson of the department, Thomas was responsible for planning and directing the work of her department, which included evaluating faculty within the department.

Thomas was Colston's immediate supervisor during Colston's entire career at the University, with the exception of Colston's last year of employment with the University.

Hugine began his term as president of the University in July 2009. It is undisputed that, at the time Colston's employment was terminated, the president had the authority to make personnel decisions concerning University employees.

Wims was hired as provost and vice president for academic affairs of the University in April 2010. In that position, Wims has responsibility for administrative oversight of the divisions of Academic Affairs and Research at the University. Such oversight includes participation in decisions related to hiring, tenure, and termination of employment of University faculty.

In December 1991, Colston submitted to Thomas an application for promotion to associate professor. In a December 3, 1991, letter signed by Bessie Jones, Ph.D., the then interim vice president for academic affairs, the University's Office of Academic Affairs confirmed receiving Colston's application for promotion. On May 12, 1992, the Promotion and Tenure Committee recommended Colston for promotion to associate professor. A June 15, 1992, letter from Jones to Colston stated that Colston's "application for promotion to the rank of assistant professor has been approved."¹

Colston alleges that in the fall of 1992 she submitted a similar application seeking tenure. Colston testified that in 1993 Jones told Colston that she "was receiving tenure in conjunction with her promotion."² Riggins testified that he recalled "learning when I first joined the Board [in 1994] that Ms. Regina Colston's tenure had been approved by the Board on the recommendation of Dr. Bessie Jones. I recall this, in part, because I was surprised that someone with only a Masters Degree would be approved for tenure."³ Colston notes that an "Office of Academic Affairs Faculty–Unit Rank Report" dated January 7, 1994, from Virginia Caples, then vice president for academic affairs, indicated that Colston was tenured. A faculty-evaluation form dated May 15, 2002, signed by Thomas as Colston's supervisor, marked Colston as tenured.

Colston submitted 10 years of faculty-evaluation forms that she contends indicate that she was tenured. Thomas's assistant, Loretta Townsend, testified by affidavit, however, that the markings on those faculty-evaluation forms actually meant to convey that Colston held a "tenure-track" position, not that she was, in fact, tenured. Thomas testified in her deposition that she did not notice that the forms showed Colston as being tenured.

An October 25, 2006, letter from Beverly Edmond, Ph.D., the then provost and vice president for academic affairs, to Colston stated that Colston was "a tenured member of the faculty." In her deposition, Thomas admitted that she had received a copy of that letter. Attached to that letter was a 2006 employment contract for Colston indicating that she was tenured. Colston submitted as evidence a copy of that contract signed by Colston, Edmond, and then president of the University Robert Jennings, Ph.D. A January 18, 2008, self-study report of Colston's department stated that Colston was a tenured assistant professor at the University. Similarly, an "Academic Program Review Self Study Report" on the department dated February 21, 2011, listed Colston as a tenured professor.

Conversely, the petitioners note that the 1988 Faculty Handbook spelled out procedures for obtaining tenure that required review and approval of the Promotion and Tenure Committee's recommendations for tenure by the vice president for academic affairs and the president of the University. Those recommendations were then to be submitted to the Board for review and final approval of tenure.⁴ The petitioners assert that the University has no record of Colston's filing an application for tenure, no record of the Promotion and Tenure Committee recommending Colston for tenure, no record of the vice president for academic affairs or the president approving a recommendation for Colston's tenure, and, notwithstanding Riggins's testimony, no record of the Board voting to grant Colston tenure. Colston produced no University records to the contrary. A note dated May 11, 2010, Thomas placed in Colston's employment file stated that "Colston is non-tenured."

In the 2007–2008 academic year, Thomas started rating Colston poorly in her faculty-evaluation forms. (Previous to that year, Thomas had written positive evaluations of Colston's performance each year she had been chair of the department.) Faculty-evaluation forms pertaining to Colston and signed by Thomas for the 2007–2008 academic year and subsequent years stated that Colston was non-tenured. Also, Colston refused to sign her faculty-evaluation forms from 2007 through 2010 on the basis that, she said, they incorrectly stated that she was not tenured.

In the fall of 2009, undertaking to act in her capacity as president of the University's chapter of the AEA, Colston organized and invited all faculty, staff, and administration to attend a presentation to be held on October 20, 2009, titled "Cut Waste, Redundancy—Not Jobs, Not Pay" ("the presentation"). Colston sent the invitation through the University's e-mail system. Kenneth Hairston of the University's office of general counsel sent Colston a letter on October 15, 2009, regarding "the email you sent through campus email notifying the university family of an all-campus meeting." Hairston stated that,

"[a]lthough [the University] AEA may call meetings on campus, only the president has the authority to call an ‘all-campus’ meeting. An ‘all-campus’ meeting implies that employees are authorized to take time away from their positions to attend the meeting. In this case, that is not true since the president did not call the ‘all-campus’ meeting."

The letter was copied to Hugine. In her deposition testimony, Colston asserted that she had called such meetings in the past and had not received any complaints from the administration for those invitations.

The presentation was given by University Professor Haresha Khanna. Colston helped prepare the slides for the presentation. The presentation complained that, despite increased revenues, the University had cut the budget for instruction; it had required faculty members to increase their teaching loads; and it was "contemplating outsourcing custodial and ground services functions of the University." The presentation also complained that the University was "continuing to spend more on administration and non-value adding activities." It expressed displeasure with the University's administration for implementing furlough programs that resulted in cutting salaries of faculty and staff. In this regard, the presentation charged that "[t]he furlough program implemented by the administration is grossly unfair, inequitable and down right regressive. It is, clearly a pay cut for the faculty." The presentation summarized the grievances as follows: "Something is seriously wrong here; what have we done to be punished? Faculty and staff should not have to sacrifice for gross negligence and sheer incompetence of the management."

The presentation called for solutions such as: "Cut waste and redundancy, improve operational efficiency, by better management and accountability"; "Divest from non-value added activities"; and "build reserves."...