Omosegbon v. Wells, No. 02-1708.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Diane P. Wood
• Citation: 335 F.3d 668
• Parties: Oladele Oladotun OMOSEGBON, Plaintiff-Appellant, v. Richard H. WELLS, Joe Weixlmann, C. Aisha Blackshire-Belay, individually and in their official capacities, and Indiana State University, Defendants-Appellees.
• Docket Number: No. 02-1708.
• Decision Date: 14 July 2003

335 F.3d 668 Oladele Oladotun OMOSEGBON, Plaintiff-Appellant,
v.
Richard H. WELLS, Joe Weixlmann, C. Aisha Blackshire-Belay, individually and in their official capacities, and Indiana State University, Defendants-Appellees. No. 02-1708. United States Court of Appeals, Seventh Circuit. Argued October 28, 2002. Decided July 14, 2003.

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Eric A. Frey (argued), Frey & Francis, Terre Haute, IN, for Plaintiff-Appellant.

John R. Maley (argued), Barnes & Thornburg, Indianapolis, IN, for Defendant-Appellee.

Before KANNE, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Citing lukewarm performance evaluations, Indiana State University (ISU) decided not to renew Professor Oladele Omosegbon's contract as a junior, untenured faculty member in the Department of African and African-American Studies. Omosegbon — to whom we refer hereafter as "Dele," following the lead of his counsel — brought suit in Indiana state court alleging that ISU and various members of the university had deprived him of his due process and academic freedom rights under the Fourteenth and First Amendments to the U.S. Constitution, and had also breached his employment contract in violation of Indiana law. ISU removed the case to federal court and then moved for summary judgment. The district court determined, without the benefit of the Supreme Court's recent clarification in Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), that all but Dele's federal-law claims for injunctive relief were barred by the Eleventh Amendment. The district court then found that the remaining federal-law claims failed on the merits because Dele could not show the property or liberty interest necessary to succeed on a procedural due process claim, and because his academic freedom claims were otherwise meritless. Dele appeals on all counts. In light of the Supreme Court's decision in Lapides, we now reverse in part the district court's jurisdictional holding, but we affirm the district court's grant of summary judgment on the merits as to all

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claims not dismissed for lack of jurisdiction, both federal and state.

I

Dele was hired by ISU in 1998 as a junior, untenured professor in the African and African-American Studies Department. The offer was accompanied by a letter which read as follows:

Tenure at Indiana State University is a status earned through service to this institution, and eligibility exists after the satisfactory completion of a pre-tenure probationary period of seven years of full-time university experience. You will be reviewed for tenure during the 2003-2004 academic year and with a positive evaluation and recommendation, will be eligible for tenure status at the beginning of the 2005-2006 academic year. Continuation during the probationary period is based on annual faculty evaluations, which include among their criteria scholarly and creative activity as well as the quality of instruction, University and professional service, and other duties assigned by your chairperson.

Dele received two annual evaluations in accordance with the terms outlined in the letter, in fall of 1998 and fall of 1999. Both evaluations were conducted by a Personnel Committee of four professors from the Department, appointed by the Department chairperson, Dr. C. Aisha Blackshire-Belay. In each case, Blackshire-Belay took the Committee's findings and final vote under advisement and forwarded her own recommendation to higher-ups at ISU. The fall 1998 evaluation was lukewarm at best. The Personnel Committee voted 4-0 to make a conditional reappointment to a second probationary year within the Department. Blackshire-Belay also favored conditional reappointment, which is obviously not as desirable as unconditional reappointment (the other favorable possibility open to the University). Dean Joe Weixlmann of the College of Arts and Sciences agreed and sent a letter (which Dele also received) up the chain to Provost Richard H. Wells, outlining various problems with his teaching duties and his scholarly output. Provost Wells thereafter made a conditional reappointment of Dele.

The fall 1999 evaluation was also lukewarm, but slightly better than the first. This time, the Personnel Committee deadlocked, with two members favoring conditional reappointment, and two members favoring unconditional reappointment. Blackshire-Belay again took the Committee's recommendation under advisement, but this time recommended that Dele not be reappointed to a third probationary year. Dean Weixlmann and Provost Wells separately concurred, and Wells delivered the bad news to Dele by letter dated December 9, 1999.

Pursuant to university by-laws, Dele requested a formal hearing regarding the termination decision; that hearing took place before a committee of the ISU faculty on May 22, 2000. The committee recommended reinstatement for Dele. Under ISU's by-laws, however, this recommendation was non-binding, and Dean Weixlmann and Provost Wells separately rejected the committee's position and held fast to the decision not to re-appoint Dele. Dele responded with this suit.

II

We turn first to those parts of the district court's order that pertain to jurisdiction. The district court held that the Eleventh Amendment barred Dele's claims for money damages against the state (of which ISU is a part) and against the individual defendants in their official capacities. While we agree that those claims cannot go forward, there is no need to reach the Eleventh Amendment issue,

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because the state is not a "person" that can be sued in this way under 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Lapides, supra, 122 S.Ct. at 1643; Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 780-81 & n. 9, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). Dele's claims against the individuals allegedly in their individual capacity present a slightly more complex question, but because he seeks backpay and other forms of monetary compensation based on an employment contract, we think it so inescapable that any resulting judgment will be paid by the state rather than the individual defendants that this bears no resemblance to a bona fide individual capacity suit. (The individuals, after all, were not even parties to the contract in their individual capacity.) Accordingly, he has no § 1983 claim against these defendants either. Finally, the district court held, and we agree, that Dele's federal-law claims for injunctive relief come within the Ex parte Young exception to the Eleventh Amendment and therefore are not barred. See 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); MCI Telecomm. Corp. v. Ill. Tel. Co., 222 F.3d 323, 337 (7th Cir.2000).

Where we do find error is in the district court's dismissal of Dele's state-law claims for lack of jurisdiction under the rule first announced in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). The fact that this was error became clear after the Supreme Court's intervening decision in Lapides. The defendants conceded the point in their brief before this court, citing Lapides for the proposition that removal is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive a State's objection to litigation of the matter in a federal forum.

While we agree that Lapides ultimately commands reversal of the district court's dismissal of Dele's state-law claims, Lapides must be read with care. What the Court said, more precisely, was that a state's voluntary invocation of a federal court's jurisdiction through removal waives a state's "otherwise valid objection" to litigation of a state-law claim in a federal forum. See Lapides, 535 U.S. at 623, 122 S.Ct. at 1646. The result is that there is an extra layer to our sovereign immunity analysis regarding Dele's state-law claims, given this Court's repeated holdings that under Erie "state rules of immunity are binding in federal court with respect to state causes of action." Benning v. Bd. of Regents of Regency Univs., 928 F.2d 775, 779 (7th Cir.1991); see also Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir.2001); Magdziak v. Byrd, 96 F.3d 1045, 1048 (7th Cir.1996). Before we find the rule announced in Lapides to be controlling here, we must first satisfy ourselves that Indiana's state-law immunity rules would have allowed an Indiana court to hear Dele's state-law contract claim had this lawsuit not been removed to federal court.

The Indiana Supreme Court abolished common-law sovereign immunity in 1972. See Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972). The Indiana legislature responded with the Indiana Tort Claims Act (ITCA), Ind.Code § 34-13-3-3, which "established extensive immunity provisions which shield governmental units from [tort] liability...." Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind.1999). But the ITCA is neither here nor there for the purposes of Dele's claims, which sound in contract, not tort. The rule for contract claims in Indiana state courts appears to be the one announced in Campbell. This means that an Indiana state court could have heard Dele's state-law claims against ISU and its

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officials, and thus under Lapides that the federal court could do so also, in the exercise of its supplemental jurisdiction. Compare Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 546, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002) (holding that supplemental jurisdiction statute, 28 U.S.C. § 1367(d), did not toll state statute of limitations for state claims against unconsenting state when...