DR. SCOTT KLINGLER, Plaintiff,
UNIVERSITY OF SOUTHERN MISSISSIPPI (U.S.M.); DR. MARTHA SAUNDERS, INDIVIDUALLY AND OFFICIALLY; DR. ROBERT LYMAN, INDIVIDUALLY AND OFFICIALLY, Defendants.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment . Having considered the submissions of the parties, the record and the applicable law, the Court finds that the motion is well taken and should be granted.
The Plaintiff Dr. Scott Klingler asserts several federal and state law claims in relation to his former employment at the University of Southern Mississippi ("USM") in Hattiesburg, Mississippi. Defendant Dr. Martha Saunders was the President of USM at all times relevant to the Complaint. Defendant Dr. Robert Lyman was the Provost of USM from approximately June, 2008 to November, 2011.
Dr. Klingler began his employment at USM in August of 2007 as a visiting professor. Effective August, 2008, Dr. Klingler was retained as an Assistant Professor of Library and Information Science at USM's School of Library and Information Science ("SLIS"). This was a tenure track appointment. The tenure track at USM is typically composed of six annual contracts. The contracts of non-tenured faculty members, including tenure track professors such as Dr. Klingler, are subject to non-renewal "for any reason." (Faculty Handbook [39-18] at § 3.11.5, 3.11.6.)
Most of the events central to this dispute have their origination in the fall of 2010. Dr. Klingler was teaching an online course labeled "LIS 458/558" during this time period. (Klingler Dep. [39-1] 55:15-56:13.) LIS 458/558 included a "chat component" in which students "type in their comments or responses to questions or inquiries and others type their inputs back." (Klingler Dep. [39-1] 56:9-13.) Dr. Klingler had the ability to log out of the chat discussion, while continuing to see what students were discussing. ( See Klingler Dep. [39-1] 57:7-10.) Dr. Klingler did this during a chat discussion on November 8, and one of the students referred to Dr. Klingler as "a joke" and stated that "he doesnt' [sic] prepare" after it appeared that he had left the chat room. (Doc. No. [39-22] at p. 4.) After the chat discussion ended, this same student sent an e-mail to Dr. Melanie J. Norton (Chair of the SLIS and Dr. Klingler's supervisor) generally expressing disappointment in her classes with Dr. Klingler and specifically advising that "Dr. K rarely adds to the discussion nor corrects misinformation." (Doc. No. [31-8].)
On the morning of November 9, 2010, Dr. Klingler and a graduate assistant by the name of Shane Hand had certain interactions that ultimately resulted in Dr. Klingler being escorted from campus by two members of USM's Police Department. According to Mr. Hand, Dr. Klingler seemed angry and exhibited unusual behavior by cursing and sitting uncomfortably close to a female graduate assistant. ( See Hand Statement [32-2]; Hand Dep. [39-3] 46:19-24, 69:3-18.) Also, Dr. Klingler had Mr. Hand review printouts of the chat logs from the LIS 458/558 class the night before, but Dr. Klingler oddly handed and took back the chat logs several times. ( See Hand Dep. [39-3] 38:22-39:9, 69:3-70:10.) Mr. Hand eventually reviewed the chat logs and told Dr. Klingler that the student who referred to him as a joke "stepped over the line". (Hand Dep. [39-3] 44:11-20). Mr. Hand contends that Dr. Klingler then stated, "I have never shot a student and what that girl said does not bother me, but I think about it and I think about it a lot." (Hand Dep. [39-3] 71:23-72:2.) Dr. Klingler denies making this statement. ( See Klingler Dep. [39-1] 49:13-50:7.) Dr. Klingler contends that he said something to the effect that "I've never shot anybody for not giving feedback", and then stated one to three minutes later, "I've thought about it; I've thought about it a lot", which pertained to what he could have done differently as to the LIS 458/558 class the previous night. (Klingler Dep. [39-1] 132:12-133:7.) "They were two completely distinct statements." (Klingler Dep. [39-1] 133:6-7.)
Approximately one week prior to November 9, 2010, Mr. Hand, Dr. Klingler and other individuals in the SLIS department attended a program presented by USM's Chief of Police, Bob Hopkins, regarding violence on campus. ( See Klingler Dep. [39-1] 46:19-25, 49:2-7; Hand Dep. [39-3] 68:3-24.) According to Mr. Hand, program attendees were "instructed to not take things as a joke, that if we were to see anything or hear anything, our job was to report it." (Hand Dep. [39-3] 68:17-24.) On November 9, Mr. Hand "reported what... [he] heard" during his interactions with Dr. Klingler to Edmond Pace (another graduate assistant), Adrienne Patterson (Mr. Hand's immediate supervisor and Dr. Norton's administrative assistant) and Beverly Davis (the graduate secretary). (Hand Dep. [39-3] 28:19-29:20, 69:1-2.) Ms. Patterson subsequently reported the matter to her supervisor, Dr. Norton. ( See Norton Dep. [39-2] 36:11-15.)
On the afternoon of November 9, a meeting was held between Dr. Norton, Dr. Lyman, Chief Hopkins, Dr. Ann Blackwell (Interim Dean of the College of Education and Psychology) and Dr. Becky Woodrick (Director of the Office of Affirmative Action) to discuss the incident involving Mr. Hand and Dr. Klingler. Mr. Hand was brought in and questioned at one point during the meeting. Subsequently, the decision was made to remove Dr. Klingler from campus until the matter could be further investigated. Dr. Klingler was formally advised of this decision through a letter signed by Dr. Blackwell. The letter states in pertinent part:
You are being placed on paid administrative leave of absence effective immediately until such time that a review can be completed regarding allegations of potential harm to others. You are not to return to campus, have contact with any students, teach classes, or participate in any university-related activity or function until further notice from this office.
(Doc. No. [32-5].) The letter was hand-delivered to Dr. Klingler in Dr. Blackwell's office. ( See Klingler Dep. [39-1] 101:13-21; Norton Dep. [39-2] 52:18-54:2.) Dr. Klingler was subsequently escorted to his vehicle in the faculty parking lot by two USM police officers. ( See Klingler Dep. [39-1] 101:22-102:24.) Dr. Klingler was not handcuffed, physically touched or pushed by the officers. However, they walked so close to him that he would have been "run over" had he not moved. (Klingler Dep. [39-1] 118:11-15.)
Following Dr. Klingler's removal from campus, Dr. Blackwell requested that Dr. Thomas Lipscomb (Interim Associate Dean for the College of Education and Psychology) investigate the November 9 incident and obtain Dr. Klingler's version of events. ( See Blackwell Dep. [39-10] 11:21-12:3; Lipscomb Dep. [39-6] 16:9-11, 34:19-21, 47:14-18.) Dr. Blackwell charged Dr. Lipscomb with this task because he had no prior knowledge of the incident. ( See Blackwell Dep. [39-10] 12:4-12.) Dr. Lipscomb met with Dr. Klingler on December 6, 2010, at USM in furtherance of his task. ( See Klingler Dep. [39-1] 65:24-66:5; Lipscomb Dep. [39-6] 25:23-26:9.) Besides Dr. Lipscomb and Dr. Klingler, legal counsel for USM, legal counsel for Dr. Klingler, and Dr. Klingler's wife were present at the meeting. Dr. Lipscomb provided Dr. Klingler with a copy of a typed statement given by Mr. Hand to Officer Keys on November 23, 2010, regarding the November 9 incident,  and Dr. Klingler then advised Dr. Lipscomb of his understanding of the matter. ( See Klingler Dep. [39-1] 66:6-12, 73:4-18; Lipscomb Dep. [39-6] 64:17-25.) Dr. Lipscomb issued a written report to Dr. Blackwell on December 9, 2010, providing the following salient information with respect to the December 6 meeting:
Of particular concern was a report that he [Dr. Klingler] may have made a statement possibly indicative of the potential of harm to another individual. Dr. Klinger [sic] indicated that he did not know of any such statement that he may have made, and on the advice of University Counsel he was provided with a copy of Mr. Hand's statement to Det. Keyes. Dr. Klingler and his attorney left the room to review that document. Upon their return, Dr. Klingler provided an account of the events beginning with a discussion of the online chat sessions from Monday, November 8, and his discussion of the chat logs with Mr. Hand the next morning. During this account, Dr. Klingler acknowledged that he may have made a statement similar to that reported by Mr [sic] Hand but if he had done so it "was in jest" and that he "certainly was not serious about shooting a student." He added, "That is ludicrous".
(Doc. No. [33-4] at p. 2.) Dr. Klingler contends that both Mr. Hand and Dr. Lipscomb incorrectly reported his comments. ( See Klingler Dep. [39-1] 66:6-15.) Dr. Lipscomb did not reach any conclusion as to what actually occurred between Dr. Klingler and Mr. Hand on November 9. ( See Lipscomb Dep. [39-6] 56:20-25, 58:24-59:3.)
USM contends that Dr. Klingler "began sending messages by email and Facebook to students and others requesting that these individuals provide support for him with U.S.M. administration" subsequent to his meeting with Dr. Lipscomb. (Defs.' Mot. to Dismiss/SJ  at p. 11.) It is undisputed that on January 13, 2011, Dr. Klingler posted a message on Facebook advising, inter alia, that he had "been wrongfully accused by a Graduate Assistant... [of] threaten[ing] a student with bodily harm with a gun", and requesting support from former students. (Doc. No. .) Dr. Klingler also posted on Facebook the November 9, 2010 letter from Dr. Blackwell placing him on administrative leave, Mr. Hand's November 23, 2010 statement, and a mock photo seeming to indicate that Dr. Klingler had been booked and arrested by USM Police. ( See Doc. Nos. [33-1], [33-2], [33-3].)
On February 18, 2011, Dr. Lyman addressed two letters to Dr. Klingler regarding his employment at USM. One letter advised Dr. Klingler that his contract of employment for the 2011-12 academic year would not be renewed upon its expiration, and that his employment at USM would terminate at the conclusion "of the academic year ending May, 2012." (Doc. No. [33-5].) The other letter relieved Dr. Klingler of his teaching obligations for the remainder of his employment and limited his duties to full time academic research. (Doc. No. [33-6].) Dr. Klingler was further advised that his continued employment was subject to several restrictions, such as not returning to any USM campus or initiating contact with any current student. (Doc. No. [33-6].) The following excerpts from Dr. Lyman's deposition appear to supply the rationale for these decisions:
Q. [W]hat was the allegation of the university as an entity, to your knowledge, against Dr. Klingler as of February 2011?
A. I think - probably as of February 18, I think there was no active accusation. I think, as of that time, I think what we had determined - what I had determined was that Dr. Klingler's performance in instruction was probably such that we did not want to retain him. And that over the period of time from November until February, he had demonstrated a propensity to involve and engage groups in this issue that we felt should not be involved in it, such as his students, and that we would be better served by his absence from campus; therefore, he was relieved for the remainder of his time at USM from teaching responsibilities and placed on research only.
Q. Let me break that down. First of all, are you aware he wasn't even on the campus from November 9?
Q. No. But you said just then, whether you realize it or not, between November and February, you said his actions have been this and this and this. Well, he had no actions for you to disparage during that time frame.
A. That's absolutely untrue. He had electronic presence via Facebook. He visited a student in the hospital. He had many actions that we objected to.
Q. How in the world can you object to him visiting a student in the hospital?
A. Because he was told not to contact students.
Q. But you have no authority to tell him that.
A. I don't see how you can say that.
Q. What written authority do you have -
A. When we think someone is potentially or possibly dangerous to the students, we have an obligation to try and protect those students, and a responsible action in accomplishing that is to say, You are prohibited from having any contact with students.
Q. But the only way you can determine that is to provide some kind of hearing so he can defend himself. You can't just go and allege something, sir, and and say that's a fait accompli and then, therefore, you're going to be banned forever. There's no authority for that.
A. We did not ban him forever based upon the potential for violence. What he was banned for after February 18 was the fact that he was out agitating. He had placed Mr. Hand's statement - police statement on his Facebook page. He had done any number of things in the face of directions not to do that, and that's the definition of ...