DePree v. Saunders

• Citation: 588 F.3d 282
• Decision Date: 12 November 2009
• Docket Number: No. 08-60978.,08-60978.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

588 F.3d 282

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 November 13, 2009.

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 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 first, followed by his state law claims.

A. First Amendment

DePree contends that his right to freedom of speech was infringed by Saunders's disciplinary actions taken in retaliation for his website and his complaints filed with the AACSB. To establish a constitutional claim for First Amendment retaliation, four elements must be shown: (1) that plaintiff "suffered an `adverse employment decision'"; (2) that the plaintiff's "speech involved a `matter of public concern'"; (3) that the plaintiff's "`interest in commenting on matters of public concern ... outweighs the [d]efendant's interest in promoting [workplace] efficiency'"; and (4) that the plaintiff's speech motivated the defendant's action. Beattie v. Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir.2001) (quoting Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.1999)). See also Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The parties do not here dispute the second and third factors, which bear on the constitutional protection afforded DePree's speech.¹ Appellees contend, however, and the trial court agreed, that DePree did not establish an adverse employment action because all tangible accoutrements of his position — except teaching duties — remained stable. Appellees also contend that in light of DePree's outbursts of disruptive conduct, his protected speech was not a "substantial" or "motivating" factor leading to the terms of discipline. Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1423 (5th Cir.1997) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97 S.Ct. 568, 574-76, 50 L.Ed.2d 471 (1977)).

To analyze the liability of the Appellees sued in their individual capacity, we will assume arguendo that DePree's evidence raised genuine, material fact issues sufficient to withstand summary judgment. Even so, the court correctly granted summary judgment because Saunders, the ultimate decision-maker, is shielded by qualified immunity, and the other Appellees, both faculty and administrators, merely contributed to her decision-making process.

First, if DePree's speech was constitutionally protected, Saunders was entitled to qualified immunity because her conduct did not violate a clearly established constitutional right. Foley v. Univ. of Houston Sys., 355 F.3d 333, 337 (5th Cir.2003). "Qualified immunity protects public officials from suit unless their conduct violates a clearly established constitutional right." Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.2003). The qualified immunity standard "gives ample room for mistaken judgments," Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986), by protecting "all but the plainly incompetent or those who knowingly violate the law." Id. at 341, 106 S.Ct. at 1096. Thus, a public official is entitled to qualified immunity unless a plaintiff demonstrates (1) a violation of a constitutional right and (2) that the right at issue was clearly established at the time of the violation. Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009). Following Pearson, a court has discretion to render judgment on an official's qualified immunity without reaching the first question. Id. at 818.

Here, no clearly established law informed Saunders that the particular discipline she imposed, which fell far short of demotion or removal, constituted an adverse employment action. In the educational context, this court has held that "[a]ctions such as `decisions concerning teaching assignment, pay increases, administrative matters, and departmental procedures,' while extremely important to the person who has dedicated his or her life to teaching, do not rise to the level of a constitutional deprivation." Harrington v Harris, 118 F.3d 359, 365 (5th Cir.1997) (quoting Dorsett v. Bd. of Trs. for State Colleges & Univs., 940 F.2d 121, 123 (5th Cir.1991)). These cases undermine DePree's assertion that he suffered an actionable adverse employment decision. In 2006, however, the Supreme Court held that for purposes of a ...