Singh v. Cordle
| Decision Date | 28 August 2019 |
| Docket Number | No. 17-3244,No. 17-3230,17-3230 |
| Citation | 936 F.3d 1022 |
| Parties | Rajesh SINGH, Ph.D., Plaintiff - Appellee/Cross-Appellant, v. David P. CORDLE, Ph.D., Defendant - Appellant/Cross-Appellee, and Michael D. Shonrock, Ph.D.; Gwen Alexander, Ph.D.; Andrew J.M. Smith, Ph.D.; Emporia State University, Defendants - Cross-Appellees. Rajesh Singh, Ph.D., Plaintiff - Appellant, v. Michael D. Shonrock, Ph.D.; David P. Cordle, Ph.D.; Gwen Alexander, Ph.D.; Andrew J.M. Smith, Ph.D.; Emporia State University, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David R. Cooper, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas for Defendants/Appellant/Cross-Appellees.
Donald N. Peterson, II (Sean M. McGivern, on the briefs), Graybill & Hazlewood LLC, Wichita, Kansas for Plaintiff/Appellee/Cross-Appellant.
Before LUCERO, HARTZ, and CARSON, Circuit Judges.
Beginning in August 2009, Plaintiff Rajesh Singh worked as an untenured professor in the School of Library and Information Management (SLIM) at Emporia State University (ESU). He was informed in February 2014 that his annual contract would not be renewed. He sued ESU and various administrators in their individual capacities, asserting several retaliation and discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; the Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq. ; and the Civil Rights Act of 1871, 42 U.S.C. § 1983. The United States District Court for the District of Kansas granted summary judgment for Defendants on every claim except one: a First Amendment retaliation claim under § 1983 against Provost David Cordle.
Provost Cordle appealed from the denial of summary judgment on the ground that he was entitled to qualified immunity. The district court then certified as final under Fed. R. Civ. P. 54(b) its order granting summary judgment on all other claims, and Plaintiff filed a cross-appeal. The cross-appeal challenges the district court’s grant of summary judgment on (1) Plaintiff’s claims that ESU and the individual Defendants discriminated against him by not renewing his contract, and (2) his claims that ESU and the individual Defendants retaliated against him for filing discrimination complaints with ESU’s human resources department and the Kansas Human Rights Commission (KHRC). The claims against ESU are brought under Title VII and the KAAD, and the claims against the individual Defendants are brought under § 1983.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s denial of summary judgment for Provost Cordle and we affirm the district court’s grants of summary judgment on the remaining claims. Cordle is entitled to qualified immunity because he could have reasonably believed that the speech for which he allegedly punished Plaintiff was not on a matter of public concern, which is one of the prerequisites for employee speech to be protected by the First Amendment. As for the discrimination claims, the district court properly granted summary judgment because Plaintiff did not establish a genuine issue of fact that ESU’s given reason for his nonrenewal—that he was noncollegial—was pretextual. Although Plaintiff contends that these discrimination claims survive under the cat’s-paw theory of liability, he does not provide adequate evidence that the allegedly biased supervisor—his school’s dean—proximately caused the ultimate nonrenewal decision. Finally, we affirm the grant of summary judgment on Plaintiff’s retaliation claims because he failed to present adequate evidence that the ESU employees who allegedly retaliated against him knew that he had filed formal discrimination complaints.
Plaintiff was appointed to the position of assistant professor at SLIM in 2009. Under the ESU policy manual, such an appointment begins a probationary period of six years, which involves "a period of annual contract renewal preceding the granting of tenure." Aplt. App., Vol. II at 242. In accordance with this policy manual, SLIM has established a review process for tenure-track faculty. The SLIM Faculty Promotion Committee (FPC), composed of all SLIM’s full-time tenured faculty, conducts annual performance reviews to evaluate each tenure-track faculty member’s teaching, research, and service to the school. Based on the annual review, the FPC votes for or against reappointing the faculty member. The FPC’s recommendation is sent to the school’s dean, who reviews it and sends her own recommendation to the provost of ESU. The provost in turn reviews the file and sends a recommendation to ESU’s president, who makes the final decision. The faculty member being reviewed is informed of the recommendation at each stage of this process.
In addition to this review established by SLIM, the ESU policy manual permits faculty members to submit a grievance on any perceived impropriety in the review process that led to their nonrenewal. A grievant can obtain the assistance of an ombudsperson—a faculty member trained to help the grievant settle the dispute with respondents without having to file a formal petition. If the grievant files a formal petition, the parties to the dispute select five persons to serve on the grievance committee from a 20-person pool of unclassified academic and administrative personnel known as the Grievance Committee Panel. Each party is allowed to strike panel members for cause and to strike up to two members without cause. The parties submit to the committee their evidence and lists of witnesses, and may request documentary evidence from the opposing party. After reviewing this evidence, the grievance committee may hold a hearing on the issues that remain unresolved. The committee then submits a report and its recommendations to the university president, who makes the final decision about how to resolve the grievance.
If ESU decides not to reappoint a faculty member during the six-year probationary period preceding the grant or denial of tenure, it must follow certain procedures. For instance, before not reappointing a faculty member with two or more years of service, the university must provide notice to the faculty member more than 12 months before the final reappointment expires.
Difficulties in the relationship between Plaintiff and his supervisor, SLIM Dean Gwen Alexander, appear to have arisen within his first year of employment. In June 2010, Plaintiff complained to Dean Alexander about other incoming faculty members receiving higher salaries than he did. He also complained about a colleague, Dr. Andrew Smith, receiving credit toward tenure for a prior appointment in a non-tenure-track position. Despite these complaints, Alexander gave Plaintiff a positive evaluation in December 2010, lauding his teaching and research. Yet Plaintiff complained to Alexander and the provost that his evaluation was not positive enough because it failed to reflect the extent of his contributions to SLIM and it unfairly implied that he was not collegial. The following month, Plaintiff filed a grievance about Alexander’s management of SLIM, but he soon withdrew it.
The FPC’s annual reviews in 2011 and 2012 concluded (and the dean agreed) that Plaintiff’s teaching and research were impressive and that his probationary appointment should be renewed. But each of the FPC’s reviews described his service as merely adequate and noted his lack of collegiality.
Plaintiff, who was born and educated in India, contends that the assertions that he was noncollegial were unfair—the result of anti-Asian bias. This accusation of bias finds some support in the testimony of former SLIM faculty members, at least in regard to Dean Alexander. According to former faculty member Christopher Hinson, Alexander held employees of color to a different standard than white employees, and she spoke to Plaintiff in a "harsh" and "demeaning" way. Aplt. App., Vol. VIII at 1395. Hinson also testified that Alexander opposed introducing two new academic programs that she thought would attract mostly Chinese students, and that Alexander said that Plaintiff struggled to learn to drive a car because Indians have difficulty judging space and distance. Lynne Chase, another former member of the SLIM faculty, testified that Alexander treated nonwhite faculty unfairly and openly lamented that so many Asians were applying for faculty positions at SLIM. Chase also said that Alexander yelled at Plaintiff in faculty meetings, noting one occasion when Plaintiff had asked why proper procedure had not been followed for his second-year evaluation and another occasion when Alexander called him a misogynist for addressing a female faculty member by her first name. And Cameron Tuai, a former SLIM faculty member of Asian descent, testified that Alexander stated that SLIM should not rely on GRE scores in admissions because Asian students "dominate" the analytical section, and that Alexander remarked that ESU’s writing center was unhelpful to students because "all they do [ ]is hire Asian people." Aplt. App., VIII at 1362. Also, Dr. Smith and Dr. Mirah Dow (another white SLIM faculty member) allegedly stated at a faculty retreat that the department did not need to worry about diversity because Kansas was a "white state." Id. at 1396. Alexander herself testified that it appeared to her that Plaintiff "felt that the white administration was elitist and not respectful of him," id. at 1426, and that she believed Plaintiff was ageist, misogynistic, and racist against white people.
In November 2013 the FPC (Dr. Smith, Dr. Dow, and Dr. Ann O’Neill) again conducted Plaintiff’s annual review, but this time it recommended that Dean Alexander not renew his appointment. It described deficiencies in Plaintiff’s teaching, research, and service, and reported yet again that Plaintiff behaved...
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