Mumford v. Godfried, 94-2772

• Citation: 52 F.3d 756
• Decision Date: 17 April 1995
• Docket Number: No. 94-2772,94-2772
• Parties: 99 Ed. Law Rep. 772 Mark MUMFORD, Appellant, v. Herbert GODFRIED, Thomas D. Galloway, Patricia B. Swan, Martin Jischke, Marvin Pomerantz, Marvin Berenstein, Thomas Dorr, John Fitzgibbon, Betty Jean Furgerson, Elizabeth Hatch, Melissa Johnson, John Tyrrell, Mary Williams, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 756

52 F.3d 756

99 Ed. Law Rep. 772

Mark MUMFORD, Appellant, v. Herbert GODFRIED, Thomas D. Galloway, Patricia B. Swan, Martin Jischke, Marvin Pomerantz, Marvin Berenstein, Thomas

Dorr, John Fitzgibbon, Betty Jean Furgerson, Elizabeth

Hatch, Melissa Johnson, John Tyrrell, Mary Williams, Appellees.

No. 94-2772.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1994.

Decided April 17, 1995.

Anthony F. Renzo, Des Moines, IA, argued, for appellant.

Steven K. Young, Asst. Atty. Gen., argued. Also appearing on the brief was Gordon E. Allen, Asst. Atty. Gen., for appellee.

Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and SHAW, ^* District Judge.

McMILLIAN, Circuit Judge.

Mark Mumford, a former nontenured faculty member in the Department of Architecture (the department), College of Design, at Iowa State University (ISU), brought this civil rights action in the United States District Court for the Southern District of Iowa against members of the University's faculty and administration (defendants), alleging that he was discharged in violation of his constitutional rights and Iowa common law. Mumford appeals from three separate orders in which the district court (1) dismissed his claims of tortious interference with contract and tortious interference with prospective business advantage, Mumford v. Godfried, No. 4-92-10530 (S.D.Iowa Nov. 23, 1992) (failure to state a claim); (2) dismissed his claim that defendants violated his Fourteenth Amendment right to due process, id. (Feb. 7, 1994) (partial summary judgment); and (3) dismissed his claim that defendants violated his First Amendment right to free speech. Id. (June 14, 1994) (summary judgment). For reversal, Mumford argues that the district court erred in holding that (1) defendants are immune from liability on his tort claims under Iowa state law; (2) he had no right to due process because he lacked a property interest; and (3) his speech was not a matter of public concern and therefore not protected under the First Amendment. For the reasons discussed below, we reverse the district court's summary judgment dismissal of Mumford's First Amendment claim, affirm on the remaining issues, and remand for further proceedings consistent with this opinion.

Background

On August 21, 1983, Mumford was appointed to a temporary position on the ISU faculty. The position was to expire on May 20, 1984, unless renewed. For two consecutive years his temporary appointment was renewed, extending the appointment to May 20, 1986. In February of 1986, Mumford entered into an agreement with ISU for a two-year probationary appointment, to expire May 20, 1988. His probationary contract was renewed for a second two-year term, ending on May 20, 1990. The probationary appointment was to be automatically renewed for another two years unless notice to the contrary was given by May 20, 1991. His probationary appointment did automatically renew for another two years, thus extending his employment to May of 1992.

On October 8, 1990, ISU adopted a document entitled "Procedures Governing the Status of Long-Term Non-Tenure Track Faculty [at] Iowa State University." Pursuant to these written procedures, persons who, as of that date, had been on temporary or adjunct appointment for more than seven consecutive years would be considered to have a continuous adjunct appointment, subject to termination only for cause.

In early 1991, Mumford was denied tenure, and his probationary appointment was affirmatively terminated. Thus, his employment with ISU ended on May 20, 1992.

Mumford alleges that, during his employment at ISU, he was openly critical of what he considered to be unsound teaching and administrative practices within the department. For example, he alleges that he criticized the department for maintaining too close a relationship with the local architectural business community. He allegedly complained that the business community exercised undue influence over the curriculum and education at ISU. He further alleges that he expressed the view that this relationship and undue influence were potentially unethical because the business community was motivated by financial pursuits rather than the academic interests of the students and ISU. He claims that he was terminated because of his open criticisms of the department.

Mumford brought this action in federal district court, pursuant to 42 U.S.C. Secs. 1983 and 1988, and Iowa common law, seeking reinstatement with tenure to his faculty position and damages. The district court dismissed all of Mumford's claims. Mumford v. Godfried, No. 4-92-10530 (S.D.Iowa Nov. 23, 1992); id. (Feb. 7, 1994); id. (June 14, 1994). This appeal followed.

Discussion

Dismissal of Tort Claims

Mumford appeals the dismissal of his state common law claims of tortious interference with contract and tortious interference with prospective business advantage on grounds that the state has waived its sovereign immunity for these claims or, in the alternative, on grounds that state sovereign immunity does not extend to these claims against defendants individually. The district court dismissed Mumford's state common law claims on grounds that defendants are immune from suit and thus the court lacked subject matter jurisdiction. Slip op. at 3-5 (Nov. 23, 1992).

Under the Iowa Tort Claims Act (Act), Iowa Code Ann. Sec. 669.1.24 (West Supp.1994), the state of Iowa has waived its sovereign immunity by allowing certain claims for damages to be brought against the state or its employees for acts or omissions within the scope of the employees' office or employment. The Act provides, however, that this waiver of sovereign immunity "shall not apply with respect to any claim against the state, to ... [a]ny claim arising out of ... interference with contract rights." Id. Sec. 669.14(4). This exception for claims arising out of interference with contract rights includes claims of tortious interference with contract and tortious interference with business advantage. See North v. State, 400 N.W.2d 566, 569-70 (Iowa 1987). Moreover, "[e]mployees of the state are not personally liable for any claim which is exempted under section 669.14." Iowa Code Ann. Sec. 669.23. The district court therefore correctly concluded that it lacked subject matter jurisdiction as to Mumford's common law tort claims. Slip op. at 3-4 (Nov. 23, 1992) (citing Lewis v. State, 256 N.W.2d 181, 192 (Iowa 1977) (if a statutory exception applies, the court lacks subject matter jurisdiction and the claim must be dismissed)). Accordingly, we affirm the district court's dismissal of Mumford's common law claims of tortious interference with contract and tortious interference with prospective business advantage.

Dismissal of Due Process Claim

Mumford also appeals the dismissal of his Fourteenth Amendment claim that he was discharged in violation of his right to due process. The district court granted summary judgment in favor of defendants on this claim on grounds that "Mumford did not have de facto tenure and did not have a property interest which gave him an expectation of reemployment. There is no constitutional right to due process if a protected property interest is lacking." Slip op. at 10 (Feb. 7, 1994).

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992). Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.1990).

Mumford concedes that he has no property interest in continued employment at ISU. However, he maintains that he "has a property interest in having the Defendants follow their own mandatory procedures when they make tenure and employment decisions." Brief for Appellant at 13. In other words, Mumford suggests that a property interest was created by the specific mandatory procedures adopted by ISU, despite the general absence of a property interest where the employment is under a temporary or probationary appointment.

It is well-established that a nontenured teacher in a state or public school is entitled to procedural due process only if administrative action deprives the teacher of an interest in liberty or an interest in property. Raposa v. Meade Sch. Dist. 46-1, 790 F.2d 1349, 1353 (8th Cir.1983) (citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (Roth ); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Clark v. Mann, 562 F.2d 1104 (8th Cir.1977); Cato v. Collins, 539 F.2d 656 (8th Cir.1976); Buhr v. Buffalo Pub. Sch. Dist. No. 38, 509 F.2d 1196 (8th Cir.1974)). In Roth, however, the Supreme Court suggested that a property interest might result from "a University rule or policy that secure[§ an] interest in reemployment or that create[s] any legitimate claim to it." 408 U.S. at 578, 92 S.Ct. at 2710.

In the present case, at the time of Mumford's termination, ISU had adopted the Procedures Governing the Status of Long-Term Non-Tenure Track Faculty, which granted de facto tenure status to faculty members who, as of October 8, 1990, had been on temporary or adjunct appointment for more than seven consecutive years, subject to termination only for cause. The district court concluded, however, that Mumford did not qualify for such de...