Staheli v. University of Mississippi, WC84-94-NB-D.

• Citation: 621 F. Supp. 449
• Decision Date: 04 November 1985
• Docket Number: No. WC84-94-NB-D.,WC84-94-NB-D.
• Parties: Albert C. STAHELI, Plaintiff, v. UNIVERSITY OF MISSISSIPPI, a Four Year State Supported Institution of Higher Learning of the State of Mississippi; Porter Fortune, Professor Emeritus and Former Chancellor of the University of Mississippi, in His Official and Individual Capacities; Peter Wagner, Academic Vice Chancellor of the University of Mississippi, in His Official and Individual Capacities; Joseph Sam, Graduate School Dean and Vice Chancellor for Research of the University of Mississippi, in His Official and Individual Capacities; Allie Smith, Dean of the School of Engineering of the University of Mississippi, in His Official and Individual Capacities; George Brunton, Chairman of the Department of Geology and Geological Engineering of the University of Mississippi, in His Official and Individual Capacities; William R. Reynolds, Tenured Member of the Department of Geology and Geological Engineering, in His Official and Individual Capacities; and Gerald Turner, Chancellor of the University of Mississippi, in His Official Capacity, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

621 F. Supp. 449

Albert C. STAHELI, Plaintiff, v. UNIVERSITY OF MISSISSIPPI, a Four Year State Supported Institution of Higher Learning of the State of Mississippi; Porter Fortune, Professor Emeritus and Former Chancellor of the University of Mississippi, in His Official and Individual Capacities; Peter Wagner, Academic Vice Chancellor of the University of Mississippi, in His Official and Individual Capacities; Joseph Sam, Graduate School Dean and Vice Chancellor for Research of the University of Mississippi, in His Official and Individual Capacities; Allie Smith, Dean of the School of Engineering of the University of Mississippi, in His Official and Individual Capacities; George Brunton, Chairman of the Department of Geology and Geological Engineering of the University of Mississippi, in His Official and Individual Capacities; William R. Reynolds, Tenured Member of the Department of Geology and Geological Engineering, in His Official and Individual Capacities; and Gerald Turner, Chancellor of the University of Mississippi, in His Official Capacity, Defendants.

No. WC84-94-NB-D.

United States District Court, N.D. Mississippi, W.D.

November 4, 1985.

David G. Hill, Oxford, Miss., for plaintiff.

Ed Davis Noble, Jr., Jackson, Miss., John H. Dunbar, Oxford, Miss., Mary Ann Connell, University of Miss., University, Miss., for defendants.

MEMORANDUM OPINION

BIGGERS, District Judge.

This cause came before the court on two motions for summary judgment filed on behalf of all defendants in this case. The defendants herein are the University of Mississippi (hereinafter the "University"), Gerald Turner, present Chancellor of the University who is sued in his official capacity, and Porter Fortune, Harvey Lewis, Peter Wagner, Joseph Sam, Allie Smith, George Brunton, and William Reynolds, high-echelon present and former employees of the University who are sued in both their official and their individual capacities. For convenience, all above-named defendants except the University and Gerald Turner are collectively referred to as the "individual defendants." After careful consideration of the thoroughly-researched and well-written briefs of all the parties, the court is now in a position to rule on these motions.

This case, involving an alleged wrongful denial of tenure at the University, requires a brief synopsis of the official tenure procedure set forth in the University publication entitled A Handbook for Faculty and Staff. Faculty members become eligible for tenure review each fall after satisfactory completion of a five-year probationary period. An employee may be considered only twice for tenure. Eligible candidates are notified at least one week before departmental tenure review meetings and may submit dossiers for consideration. Thereafter, the tenured department members review each candidate and cast advisory votes. After consideration of the advisory votes, the department chairperson gives an independent recommendation to the dean of the school or college. If the department chairperson advises against tenure, the application stops, subject to appeal procedures hereinafter described. However, if the department chairperson gives a favorable recommendation, the candidate's application and portfolio goes through four advisory reviews. Following these reviews, the application, portfolio, and advisory comments are sent to the Chancellor of the University, who determines in his discretion whether a particular candidate merits tenure. If the Chancellor approves the application, he notifies the candidate by letter.¹ However, if tenure is not granted, the Chancellor informs the department chairperson through a memorandum which sets forth the reasons for the unfavorable decision. The department chairperson then notifies the unsuccessful candidate, who may obtain a copy of the memorandum.

Upon either unfavorable recommendation by the department chairperson or disapproval by the Chancellor, the candidate may appeal to the Tenure Committee. This committee, composed of the Senate of the Faculty, reviews the decision and submits an advisory recommendation to the Chancellor. Thereafter, the Chancellor in his discretion takes whatever action he deems appropriate.

In the present case, the plaintiff became a candidate for tenure with the University Department of Geology and Geological Engineering in October, 1982. Although the acting department chairperson recommended tenure, all review personnel advised to the contrary. The adverse recommendations purportedly were premised on the plaintiff's lack of national publication,² his perceived inability to teach upper-level courses, and his active recruitment of unqualified persons as department majors.³ When the application and advisory comments reached the Chancellor, he cited the plaintiff's lack of national publication and denied tenure. The plaintiff appealed to the Tenure Committee, which overwhelmingly advised that tenure be granted. Despite this recommendation, the Chancellor did not change his decision.

In accordance with University tenure policy, the plaintiff was invited the following fall to submit additional materials or publications for tenure evaluation. The plaintiff offered no further materials, the department committee voted against tenure, and the department chairperson did not make a favorable recommendation. Although the plaintiff was entitled to appeal this determination, he apparently took no further action. Nevertheless, the Faculty Senate on its own accord resolved that tenure should be granted. The Chancellor took no action on this resolution; furthermore, the plaintiff was not offered a teaching position after the 1984-85 academic year.

The plaintiff asserts three interrelated causes of action. First, the plaintiff contends that all defendants except Gerald Turner⁴ violated his due process rights as secured by the fifth amendment, the fourteenth amendment, and 42 U.S.C. § 1983 (1981), and proximately caused loss of employment income, loss of professional reputation, emotional distress, and physical illness. Secondly, the plaintiff alleges that the individual defendants conspired in both their official and individual capacities to deny him tenure, increased compensation, and summer employment, thereby violating his due process rights under the fifth amendment, the fourteenth amendment, and 42 U.S.C. § 1983, as well as his first amendment rights to free speech and association. Finally, the plaintiff propounds a pendent state claim that the individual defendants acting in their individual capacities violated his rights under the laws of the State of Mississippi. The plaintiff seeks declaratory relief, compensatory and punitive damages with interest from the individual defendants, an injunction requiring the University and Gerald Turner as Chancellor to grant full tenure to the plaintiff retroactive to the first tenure denial, court costs, and reasonable attorney fees.

1. Due Process Claims

(a) Property Interest

The plaintiff contends that he was deprived of a property interest, the "expectancy of tenure," without due process in violation of the fifth and fourteenth amendments and of 42 U.S.C. § 1983. The fifth amendment restricts only actions by the federal government, see, e.g., Rutherford v. United States, 702 F.2d 580, 582 n. 4 (5th Cir.1983) (application of fifth amendment limited to federal action); Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140, 1143 (N.D.Ala.1971) (same), aff'd., 456 F.2d 1294 (5th Cir.), cert. denied, 410 U.S. 946, 93 S.Ct. 1352, 35 L.Ed.2d 613 (1973), and a claim under this amendment is improper in this case since no federal action is alleged. However, the claims under both the fourteenth amendment and section 1983 for deprivation by the state of a property interest remain for consideration, see, e.g., Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556 (1972) (fourteenth amendment cause of action for deprivation of property interest); Vail v. Board of Education of Paris Union School District No. 95, 706 F.2d 1435, 1436 (7th Cir.1983) (section 1983 cause of action for deprivation of property interest), aff'd. per curiam by divided court, 466 U.S. 377, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984).

In order to prevail under either the fourteenth amendment or section 1983, the plaintiff must possess a property interest under the law of the state. See, e.g., Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561 (existence of property interest a question of state law). Undoubtedly, an expectancy of tenure constitutes a protected property interest in some cases, see, e.g., Lucas v. Chapman, 430 F.2d 945, 947 (5th Cir.1970); Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970); for example, when an employee's expectations are not unilateral, but are based on statute, contract, or a mutually explicit understanding. See Board of Regents v. Roth, 408 U.S. at 578, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.⁵ Furthermore, the existence of an expectancy of tenure may be resolved in some cases as a matter of law, see, e.g., Wells v. Doland, 711 F.2d 670, 675 (5th Cir.1983) (affirmance of summary determination of no expectancy of tenure at McNeese State University in Louisiana; no evidence indicated tenure recommendation tantamount to tenure grant); Montgomery v. Boshears, 698 F.2d 739, 742 (5th Cir.1983) (same at University of Southern Mississippi; tenure procedures followed and no evidence of de facto tenure presented).

In the present case, the plaintiff was recommended by his department chairperson for tenure; however, all four reviewers advised against such a grant. The plaintiff has produced no evidence demonstrating that the Chancellor routinely bestows tenure over unanimous advisory disapprovals. Furthermore, although the Tenure Committee subsequently recommended tenure, no evidence was presented regarding the usual effect of such a recommendation, especially in conjunction with...