Mulvenon v. Greenwood

• Decision Date: 10 June 2011
• Docket Number: No. 10–1957.,10–1957.
• Parties: Sean W. MULVENON, Appellant,v.Reed GREENWOOD, Individually; Thomas E. Smith, Official Capacity as Dean of the College of Education and Health Professions, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

643 F.3d 653

94 Empl. Prac. Dec. P 44,208

269 Ed. Law Rep. 46

32 IER Cases 623

Sean W. MULVENON, Appellant,

v.Reed GREENWOOD, Individually; Thomas E. Smith, Official Capacity as Dean of the College of Education and Health Professions, Appellees.

No. 10–1957.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 12, 2011.Filed: June 10, 2011.

Stephen Lee Wood, argued, Rogers, AR, for appellant.Thomas Scott Varady, argued and on the brief, Fayetteville, AR, Jeffrey Alan Bell, Little Rock, AR, William R. Kincaid, Tamla J. Lewis, Fayetteville, AR, on the brief, for appellee.Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.SMITH, Circuit Judge.

Sean Mulvenon sued Reed Greenwood, individually and in his official capacity as Dean of the College of Education and Health Professions of the University of Arkansas (COEHP),¹ alleging violations of procedural and substantive due process under the Fourteenth Amendment. The district court ² dismissed Mulvenon's complaint with prejudice. Mulvenon contends that the court erred in concluding that he lacked a protected property interest in his claim that he possessed a legitimate expectation of continued employment as the holder of an endowed position in the COEHP. For the following reasons, we affirm.

I. Background

In a letter dated August 16, 2004 (“Appointment Letter”), Greenwood offered Mulvenon a position as the holder of the George M. and Boyce W. Billingsley Chair for Educational Research and Policy Studies (“Billingsley Chair”) in the COEHP's Department of Educational Leadership, Counseling, and Foundations. At that time, Mulvenon worked as a tenured faculty member in the COEHP. The Appointment Letter, attached to Mulvenon's complaint, indicated that Mulvenon's appointment would be “for a five-year period renewable on an annual basis beginning on August 16, 2004[,] and ending on May 10, 2009.” The Appointment Letter further stated that at the conclusion of Mulvenon's service in the Billingsley Chair position, he would return to his tenured faculty position at his previous salary, “together with any annual merit increases earned ... plus any other permanent state-funded adjustments.” The Appointment Letter also “incorporated as part of the appointment to this position” an attached document entitled “ Guidelines for Annual and Fifth–Year Reviews of the George M. and Boyce W. Billingsley Chair for Educational Research and Policy Studies ” (“Reappointment Guidelines”).

The Reappointment Guidelines, also attached to Mulvenon's complaint, detailed the process for reviewing Mulvenon's performance in the Billingsley Chair position on an annual basis and at the end of his five-year term. In the fifth year of his term, Mulvenon could indicate whether he was interested in seeking reappointment. If so, Mulvenon would meet with the department head to discuss the upcoming five-year review. Thereafter, the department head would assemble “a review committee of faculty members external to the University of Arkansas,” who would “review and evaluate the chair holder's performance and provide recommendations regarding reappointment to the chair.”

To facilitate the external review committee's task of evaluating his performance, Mulvenon would prepare a statement describing his responsibilities, major accomplishments, and the effect of these accomplishments. Each member of the external review committee would prepare a letter assessing Mulvenon's performance in the Billingsley Chair position and “forward their letter[s] of review to the department head,” who then had the option of interviewing each reviewer. Mulvenon would also receive a copy of these letters, and the department head would meet with Mulvenon to discuss the contents of the letters. The Reappointment Guidelines provided that “[t]he letters of review, and any written response to the letters by the chair holder, [would] be used to consult with the dean regarding reappointment.”

Finally, the Reappointment Guidelines indicated that the department head and the dean of the COEHP, Greenwood, would make a final decision regarding reappointment:

Reappointment or alternative decisions (e.g., reappointment for a shorter term, or no reappointment) shall be the decision of the department head on consultation with the dean and should be based on the letters of review from the external committee. The final decision on reappointment will be made by the Dean of the College of Education and Health Professions after reviewing all submitted written materials and consulting with the Head of the Department of Educational Leadership, Counseling and Foundations and the incumbent chair holder.

Mulvenon accepted his appointment to the Billingsley Chair position in a letter dated August 24, 2004.

As Mulvenon approached the end of his five-year term in 2009, he expressed his interest in seeking reappointment to the Billingsley Chair position. Thus, COEHP officials began the evaluation process described in the Reappointment Guidelines. At Mulvenon's request, the department head, Michael Daugherty, recused himself from the reappointment process.

Three external faculty members—Dr. Earl Cheek of Louisiana State University, Dr. William Rayens of the University of Kentucky, and Dr. David Shannon of Auburn University—reviewed Mulvenon's personal statement and submitted letters of review. Dr. Cheek and Dr. Shannon provided very positive evaluations of Mulvenon and recommended that he be reappointed. Dr. Rayens was somewhat ambivalent—expressing reservations with Mulvenon's research and teaching performance but noting that Mulvenon had improved the reputation of the university locally and nationally. Ultimately, Dr. Rayens neither recommended nor advised against Mulvenon's reappointment. Mulvenon submitted a letter responding to each of the three external reviewer's letters. Greenwood and Associate Dean John Murry met with Mulvenon on May 8, 2009.

In a letter dated May 10, 2009, Greenwood notified Mulvenon that he would not be reappointed for a new term in the Billingsley Chair position. In the letter, Greenwood indicated that he had “carefully considered the three external letters of review.” He also stated that he was “familiar with [Mulvenon's] publications and [his] teaching record.” Based on Greenwood's “professional academic judgment,” he had determined that Mulvenon “[had] not fulfilled the scholarship and teaching expectations of the Billingsley Chair as set forth in the Guidelines for Reappointment.” Greenwood then elaborated on Mulvenon's shortcomings in both areas. Mulvenon returned to his prior tenured faculty position in the COEHP at the conclusion of his five-year term in the Billingsley Chair position.

Mulvenon filed suit in the district court against Greenwood, in his individual and official capacities, alleging violations of his rights to procedural and substantive due process for not reappointing him to the Billingsley Chair position. In response, Greenwood filed a motion to dismiss, contending that Mulvenon's complaint failed to establish any constitutionally protected property or liberty interests. The district court granted the motion to dismiss all of Mulvenon's claims. On the individual-capacity claims, the court concluded that Mulvenon's complaint failed to establish any constitutional violation because (1) he lacked a property interest in being reappointed to the Billingsley Chair position, and (2) his non-reappointment did not implicate any liberty interests. The court also dismissed Mulvenon's official-capacity claims because it concluded that his complaint had failed to allege facts sufficient to establish any constitutional violations.

II. Discussion

On appeal, Mulvenon argues that he had a legitimate expectation of continued employment in the Billingsley Chair position and therefore had a property interest entitled to the protections of due process. According to Mulvenon, his legitimate expectation of reappointment stems from the Reappointment Guidelines, which state that the reappointment decision “should be based on the letters of review from the external committee.” Mulvenon argues that under Arkansas law, this language means that the decision must be based on the letters. Because the letters from Dr. Cheek, Dr. Rayens, and Dr. Shannon were all favorable, Mulvenon contends that he “acquired a legitimate expectation of (continued) employment as the Billingsley Chair” when he received those letters. Mulvenon maintains that the Reappointment Guidelines did not allow Greenwood to substitute his judgment for that of the external review committee. Because Mulvenon's complaint shows that he had a property interest, Mulvenon asserts that he alleged a violation of his constitutional right to due process, and the district court erred in dismissing his complaint.

In response, Greenwood retorts that the district court properly dismissed Mulvenon's claims because the complaint did not allege a violation of a constitutional right. Greenwood maintains that Mulvenon lacked a property interest in being reappointed to the Billingsley Chair position because he did not have a legitimate claim of entitlement to being reappointed. Greenwood contends that the plain language of the appointment letter and the Reappointment Guidelines vested him—the Dean of the COEHP—with the sole discretion to determine whether to reappoint Mulvenon. The external review letters were part of the reappointment process, but they were not binding on Greenwood and, therefore, could not create a legitimate claim of entitlement. Because “Mulvenon failed to allege facts stating a constitutional deprivation of any property or property interests,” Greenwood asserts that Mulvenon necessarily failed to state a claim for a procedural or substantive due process violation.

We review de novo the district court's grant of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, accepting the facts alleged in the complaint as true and granting all...