Simpson v. Alcorn State Univ., Civil Action No. 3:13CV424TSL–JMR.
| Decision Date | 13 June 2014 |
| Docket Number | Civil Action No. 3:13CV424TSL–JMR. |
| Citation | 27 F.Supp.3d 711 |
| Court | U.S. District Court — Southern District of Mississippi |
| Parties | Alvin T. SIMPSON, Plaintiff v. ALCORN STATE UNIVERSITY; M. Christopher Brown, Individually and Official Capacity ; Samuel White, Individually and Official Capacity ; Robert Z. Carr, Jr., Individually and Official Capacity ; Malinda Butler, Individually and Official Capacity ; Doris E. McGowan, Individually and Official Capacity ; Board of Trustees of Institutions of Higher Learning; Mississippi Institutions of Higher Learning, Defendants. |
Bethany Brantley Johnson, Strategic Employment Solutions, LLC, Jackson, MS, for Plaintiff.
Robert L. Gibbs, Gibbs Whitwell PLLC, Jackson, MS, for Defendants.
From 1991 until his resignation in May 2012, plaintiff Alvin T. Simpson was employed as a professor in the Department of Education and Psychology of Alcorn State University (ASU) pursuant to a series of contracts with the Mississippi Institutions of Higher Learning (IHL). From 2008 to 2011, he also served as interim Chair of the Department of Education and Psychology. Simpson filed the present action on May 10, 2013 against ASU, IHL and a number of ASU officials and employees, asserting putative claims for disability discrimination under the Rehabilitation Act, 29 U.S.C. § 794 ; violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq.; violation of his due process rights under the Fourteenth Amendment; retaliation for the exercise of his First Amendment rights; for conspiracy ostensibly in violation of 42 U.S.C. §§ 1983 and 1985 ; and for breach of contract.1 The case is presently before the court on a motion by all defendants to dismiss or, in the alternative, for summary judgment.
Despite having requested and received two extensions of time to respond to the motion, plaintiff failed to timely respond to the motion. He did finally file a response, two weeks beyond the latest deadline established by the court at his request; and he did so without seeking a further extension or leave to file his response out of time. Given these circumstances, defendants have understandably moved to strike plaintiff's response. It is a reasonable request, and the court certainly would be well justified in striking the response. However, since nothing in the response alters this court's view that dismissal is in order, the court will deny the motion to strike.
The allegations of plaintiff's complaint relate to troubles that began in mid 2009, after he reported to an IHL auditor that defendant Doris McGowan, an ASU employee, had forged his signature on a payment authorization to pay $5,000 to ASU employee Doris Gary (resulting in Gary's termination in July 2009 but not McGowan's). Plaintiff alleges that McGowan and her husband began engaging in retaliatory conduct toward him. In October 2009, plaintiff made an official complaint to ASU about the McGowans' conduct; but ASU took no action in response to his complaint and therefore, on October 14, 2009, he reported the McGowans' “criminal activity” to the Attorney General's office.
At some point subsequent to Gary's termination, defendant Robert Carr was installed as Dean of the Department of Education and Psychology. Plaintiff alleges that although Carr knew of the reason for Gary's termination and had been specifically advised by IHL that she was ineligible for rehire, Carr nevertheless rehired her in September 2010 as an adjunct professor without seeking input from plaintiff, for whom he expressed disdain for having been a whistleblower. Plaintiff states that he complained about Carr's “unlawful conduct,” and that contrary to ASU policy, he was not evaluated during the 2010–11 academic year and consequently did not receive a pay raise in January 2012.
Plaintiff alleges that in August 2010, he informed Carr of his “health problems and spinal cord injury
.” The following month, plaintiff was hospitalized because of his “disability.” He claims that Carr “pestered” and “intimidated” him into returning to work before he was well, and then, upon his return to work, imposed additional job assignments on plaintiff for the specific reason of “agitating and harassing” him. Specifically, after the officer manager retired in October 2010, Carr refused to hire an office manager to provide plaintiff assistance, causing plaintiff to have to take on secretarial tasks, which “agitated his medical condition.”
The complaint states that in late 2010, Carr formed a “search committee” to select a permanent chair for the Department of Education and Psychology, which committee was comprised of “predominantly female employees with whom Carr knew plaintiff had adversarial relationships.” One such member was a Barbara Martin, who “carried a grudge” against plaintiff because he had not supported her application for promotion to professor. Plaintiff alleges that although he qualified and applied for the position, the committee recommended Malinda Butler for the position, notwithstanding that she did not possess the requisite academic rank to qualify for the position; and in June 2011 Carr announced his selection of Butler for the position. Plaintiff alleges that following the alleged “unlawful” choice of Butler over plaintiff as permanent Department Chair, Butler commenced to engage in retaliatory conduct against him, forcing him to vacate his office and move into her old office in an attempt to humiliate him, and then failing to give him a key to the office, leaving him with no access to any office for nearly a month in the summer of 2011. Further, in July 2011, at a time when he was teaching three online classes, Butler sent a letter threatening to terminate him based on his having been absent from the University for more than twenty days, i.e., not physically “on campus”, without having received approved FMLA leave for such absence. Plaintiff alleges that other non-disabled faculty members were allowed to teach online courses without threat of termination.
On July 29, 2011, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), complaining of gender discrimination with respect to his claimed “demotion” from his position as interim Department Chair and disability discrimination and retaliation with respect to his threatened termination. Around the same time as his EEOC charge, he filed a formal grievance with defendant Samuel White, Vice President for Academic Affairs, claiming that Butler was unqualified for the position of Department Chair. However, White refused to process the grievance, which led plaintiff to turn to IHL for assistance. He alleges that ASU President Christopher Brown became so angry with him for having contacted IHL that he refused to meet with or discuss any issues with plaintiff.
Ultimately, defendants did schedule a hearing for December 13, 2011. At the time, plaintiff he was approved FMLA leave due to his medical condition. At this time, plaintiff was also the subject of an allegation of sexual harassment by a male student. Plaintiff alleges that defendants, in direct retaliation for his complaints to IHL about his concerns, leaked to the news media that he would be on campus on December 13 for a grievance hearing so that the media could catch him on film. He further alleges that defendants attempted to portray him as homosexual and engaged in gay stereotyping.
Also during this time period, according to plaintiff, despite a directive from IHL to ASU to investigate his grievances, Brown refused to allow such investigation. As a result, in December 2011, plaintiff made a formal complaint to the federal government based on whistleblower reprisal claims related to the use of educational funds at ASU through the American Recovery and Reinvestment Act of 2009.
On January 20, 2012, the Grievance Committee issued its report, finding that Carr had engaged in misconduct in several respects, the “most troubling” being the appointment of Butler as Department Chair. According to the complaint, the committee found that Carr had a clear bias against plaintiff, that he influenced the search committee in an improper manner, and that Butler was not qualified for the position. However, despite the committee's recommendation that a search be reopened, defendants rejected that recommendation and kept Butler in the position. Plaintiff alleges that due to the “continuing retaliation treatment” by defendants, he was forced to take early retirement effective May 15, 2012, which constituted constructive discharge.
Based on these allegations, plaintiff has purported to assert federal claims for violation of the Rehabilitation Act and the Family Medical Leave Act; for violation of his right to free speech guaranteed by the First Amendment; for infringement of his Fourteenth Amendment due process rights; and for conspiracy in violation of his rights under 42 U.S.C. §§ 1983 and 1985. In addition, he has asserted a state law claim for breach of contract. In response to defendants' motion, plaintiff has conceded the conspiracy claim and the FMLA claim. The remaining claims are addressed seriatim.
In Count I of his complaint, plaintiff asserts a claim for disability discrimination under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, based on his allegations that on account of his disability or perceived disability, defendants refused to evaluate him and give him a raise in January 2012 and forced him into early retirement. He additionally alleges that defendants failed to accommodate his disability by refusing to allow him to teach online courses and requiring him to perform duties that should have been done by an office manager.
Section 504 of the Rehabilitation Act “prohibits discrimination on the basis of disability by recipients of federal funds.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 614 n. 5 (5th Cir.2009) ; 29 U.S.C. § 794...
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