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Payne v. University of Southern Mississippi

United States District Court, S.D. Mississippi, Southern Division

February 21, 2014

THOMAS PAYNE, Plaintiff,
v.
THE UNIVERSITY OF SOUTHERN MISSISSIPPI, et al., Defendants.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

For the reasons stated below, the Court grants in part, denies in part, and presently declines to address in part Defendants' Motions for Summary Judgment [104, 106].

I - Background

Thomas Payne was a tenured associate professor in the criminal justice department of the University of Southern Mississippi ("USM"). He alleges that Defendants subjected him to various adverse employment actions during his employment by the University, including, but not limited to, the denial of promotion, adverse annual performance reviews, the denial of permission to engage in outside employment, and the receipt of a notice that his contract would not be renewed. He alleges that some of the actions were in retaliation for filing grievances and EEOC charges, and that some were motivated by his religious beliefs.

Martha Saunders was the President of the University during most of the events leading to this case, and Robert Lyman was the Provost. Joe Whitehead was the Dean of the College of Science & Technology for a portion of the relevant time period. Dale Ledford was first the chair of the Criminal Justice Department, and then the Associate Dean of Science & Technology. Lisa Nored succeeded Ledford as chair of the criminal justice department. Defendants filed motions for summary judgment [104, 106], which are ripe for review.

II - Discussion

Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (punctuation omitted). The nonmovant "must come forward with specific facts showing that there is a genuine issue for trial." Id. (punctuation omitted). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc., 627 F.3d at 138. "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.

The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).

Plaintiff asserted a wide variety of claims. Liberally construing the Complaint, the Court finds that Plaintiff pleaded the following causes of action:

• Section 1983 claim for violation of his right to procedural due process;
• Section 1983 claim for violation of his right to substantive due process;
• Section 1983 claim for violation of his right to Equal Protection;
• Section 1983 claim for violation of his First Amendment right to be free from retaliation for protected speech;
• Section 1983 claim for violation of his First Amendment right to association;
• Title VII retaliation;[1]
• Title VII hostile work environment;
• breach of contract;[2]
• misrepresentation;
• negligent and intentional infliction of emotional distress; and
• negligence.

Plaintiff also listed a series of Defendants' actions/inactions from which these causes of action arise, but Plaintiff did not specify in the Complaint which Defendants committed which actions. Plaintiff apparently asserts all causes of action against all Defendants.[3]

In briefing, Plaintiff mentioned a Section 1983 claim for violation of his First Amendment right to the free exercise of religion, a Title VII discrimination claim, and claims of constructive discharge under both Section 1983 and Title VII. None of these claims were asserted in the Complaint. "A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court." Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005).

II. A - Section 1983

"Section 1983 provides a cause of action for persons who have been depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws' of the United States by the actions of a person or entity operating under color of state law. Kovacic v. Villareal, 628 F.3d 209, 213 (5th Cir. 2010) (citing 42 U.S.C. § 1983). Plaintiff asserted a variety of claims under Section 1983, and Defendants offered a variety of arguments for summary judgment. The Court will attempt to address all of the arguments presented in Defendants' initial briefs. Johnson v. Watkins, 803 F.Supp.2d 561, 575 n. 3 (S.D.Miss. 2011) (the court does not consider arguments raised for the first time in reply).

II.A.1 - USM & Individuals in their Official Capacities

First, Defendants argue that USM and the individual Defendants in their official capacities are not "persons" within the meaning of Section 1983. It is well-settled that states and state agencies are not "persons" subject to suit under § 1983. Cheramie v. Tucker, 493 F.2d 586, 587 (5th Cir. 1974). This rule extends to public universities, Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007), and public employees sued in their official capacities, as an official capacity claim is asserted "against the official's office" and "is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). "A suit is not against a state, however, when it seeks prospective, injunctive relief from a state actor, in her official capacity, based on an alleged ongoing violation of the federal constitution." K. P. v. Leblanc, 729 F.3d 427, 439 (5th Cir. 2013); see also Salcido v. Univ. of S. Miss., No. 13-60444, 2014 U.S.App. LEXIS 2711, at *15 (5th Cir. Feb. 13, 2014).

Therefore, the Court grants Defendants' motions for summary judgment as to Plaintiff's Section 1983 claims against USM, and as to Plaintiff's Section 1983 claims for money damages against the individual Defendants in their official capacities, but it denies the motions with respect to Plaintiff's Section 1983 claims for prospective injunctive relief against the individual Defendants in their official capacities.

II.A.2 - First Amendment Retaliation

Plaintiff claims that Defendants retaliated against his religious speech with a variety of adverse employment actions. Defendants argue that the speech in question is not protected by the First Amendment because it was pursuant to Plaintiff's official duties as a professor. The Fifth Circuit has summarized the relevant law:

[G]overnment employees are not stripped of their right to freedom of expression by virtue of their employment. This right is not absolute, though, and we utilize a four-pronged test to determine whether the speech of a public employee is entitled to constitutional protection. A plaintiff must establish that: (1) he suffered an adverse employment decision; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental defendant's interest in promoting efficiency; and (4) the protected speech motivated the defendant's conduct. In 2006, the Supreme Court added what we have characterized as a "threshold layer" to the second prong of the retaliation test. Under this prong, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." While the court must consider factual circumstances to determine whether speech is official, the determination is still a question of law. Functionally, this threshold layer has transformed our test, inserting an additional prong at which we consider whether the speech was pursuant to the employee's duties or as a citizen.

Gibson v. Kilpatrick, 734 F.3d 395, 400 (5th Cir. 2013) (citing Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).

A graduate student employed in a program administered by Plaintiff, Lacey Stewart, made an informal complaint [104-2] about Plaintiff. Among other things, she complained: "Sometimes during conversations with Dr. Payne, religion or Bible verses are usually brought up by him in some way. This makes me and others very uncomfortable.... While in Scotland with CJA staff, Dr. Payne made the statement that anyone who is not a Christian is going to hell."[4] She continued: "I have been told to go pray about certain issues when they are being discussed with Dr. Payne numerous times.... I do not feel comfortable when told to go pray from my supervisor instead of dealing with the situation." She asserted "that this is very inappropriate in a work environment. This is disregarding to everyone's feelings especially knowing we have an international student of Hindu background involved in the conversation." And Stewart claimed that she felt "that if we do not agree with Dr. Payne's interpretation of Christianity and the Bible that we are looked down upon."

After Stewart submitted her complaint, Plaintiff was called to a meeting on February 9, 2009. The attendees were: Plaintiff; Rebecca Woodrick, the University's EEO Director; Defendant Lisa Nored, Plaintiff's Department Chair; and Defendant Dale Ledford, the Associate Dean of Science and Technology. It is undisputed that the general purpose of the meeting was to warn Plaintiff against making potentially offensive religious statements in the workplace.

Plaintiff admits that he openly discussed his religious beliefs with students. In fact, he admitted in an email to Woodrick [106-1] that the facts alleged by Stewart were true, although he disagreed with Stewart's assessment of the appropriateness of the behavior. Some of the disputed speech occurred in the classroom, while some of it occurred in one-on-one conversations. He testified: "I felt like I could tell my students from an evangelistic standpoint... that I would pray for them."[5] He further stated: "[A]s a Christian, I am called to be an evangelical.... [B]y that I mean whien I am asked about my faith, that I stand up for my faith and that I tell people about my faith, which is appropriate and not illegal." Later in the deposition, he continued: "I didn't inappropriately invoke my Christian faith to anybody. The only time that I would do that was when there was a general discussion. It was more of an evangelical rather than a proselytizing." In a grievance [117-9] filed with the University after the February 2009 meeting, he claimed the meeting had a "chilling effect" on his "first amendment right to express [his] Christian walk in the workplace."

Plaintiff apparently argues that the First Amendment[6] permits him to engage in any religious speech he desires without reprisal, even within the context of his employment as a professor at a public university. But "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Gibson, 734 F.3d at 400. Speech is made pursuant to official duties if it "owes its existence to the employee's professional responsibilities." Garcetti, 547 U.S. at 421. Plaintiff wholly failed to address this issue in his briefing, but the evidence demonstrates that all of the speech at issue[7] took place pursuant to Plaintiff's duties as a professor at the University. Therefore, the speech was not protected from employer discipline, and the Court grants Defendants' motions for summary judgment as to Plaintiff's First Amendment retaliation claim.[8]

II.A.3 - Due Process

Plaintiff claims that Defendants committed both procedural and substantive due process violations. Procedural due process requires that a party deprived of a life, liberty, or property interest be provided "notice and an opportunity to be heard... at a meaningful time and in a meaningful manner." Gibson v. Tex. Dep't of Ins. - Div. of Workers' Comp., 700 F.3d 227, 239 (5th Cir. 2012). "[F]or a person to have a procedural due process claim that damages or other relief can remedy, he must have been denied life, liberty, or property protected by the Fourteenth Amendment." Wilson v. Birnberg, 667 F.3d 591, 597 (5th Cir. 2012).

"Substantive due process bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." Lewis v. Univ. of Tex. Med. Branch, 665 F.3d 625, 630 (5th Cir. 2011). It "requires only that public officials exercise professional judgment, in a nonarbitrary and noncapricious manner, when depriving an individual of a protected property interest." Id. at 631. Like procedural due process, substantive requires a plaintiff to show that he was deprived of a legitimate entitlement - a life, liberty, or property interest protected by the Fourteenth Amendment. Id. at 630.

Property or liberty interests may be "created and defined by existing rules or understandings that stem from an independent source such as state law, " Wilson, 667 F.3d at 598, including the policies and procedures of public universities. Bd. of Regents v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). "Mississippi courts have held that contract rights constitute enforceable property rights." Whiting v. Univ. of S. Miss., 451 F.3d 339, 345 (5th Cir. 2006) (citing Univ. of Miss. Med. Ctr. v. Hughes, 765 So.2d 528, 536 (Miss. 2000)). Mississippi courts have also "held that employee manuals become part of the employment contract, creating contract rights to which employers may be held...." Id. (citing Robinson v. Bd. of Trustees of E. Cent. Junor Coll., 477 So.2d 1352, 1353 (Miss. 1985)). Therefore, "where a property right to procedural protections existed under state law, those procedural guarantees constitute a property interest protected under due process." Id.

"No discretion in the official and a reasonable expectation in the citizen are the central elements" of a due process entitlement. Hampton Co. Nat'l Sur. LLC v. Tunica County, Miss., 543 F.3d 221, 226 (5th Cir. 2008)."[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion." Ridgely v. FEMA, 512 F.3d 727, 735 (5th Cir. 2008).

II.A.3.a - Notice of Non-Renewal

First, Plaintiff claims that Defendants deprived him of procedural and substantive due process by sending him notice that his contract would not be renewed. Defendants argue that the notice did not deprive Plaintiff of any protected life, liberty, or property interest.

On August 25, 2010, Defendant Lyman, then the Provost and Vice-President of Academic Affairs, sent Plaintiff a letter [117-37] notifying him that the Gulf Coast campus Criminal Justice program would be discontinued, and that his contract would not be renewed at the conclusion of the 2010-2011 academic year. The notice was rescinded in a second letter to Plaintiff [106-4] on March 1, 2011. It is undisputed, therefore, that Plaintiff was not terminated in 2010 - despite his repeated misrepresentations of a "termination" in briefing. Indeed, the University did not discontinue the Gulf Coast campus Criminal Justice program, and Plaintiff never experienced a break in employment until he resigned in December 2012.

Procedural and substantive due process claims require that a plaintiff have been denied a life, liberty, or property interest protected by the Fourteenth Amendment. See Wilson, 667 F.3d at 597 (procedural due process); Lewis, 665 F.3d at 630 (substantive due process). The rescinded notice of non-renewal did not deprive Plaintiff of any life, liberty, or property interest, and the Court grants Defendants' motions for summary judgment as to any procedural or substantive due process claim arising from it.

II.A.3.b - Outside Employment

Next, Plaintiff contends that Defendants deprived him of due process by denying him permission to engage in outside employment during academic years 2008-2009, 2009-2010, 2010-2011, and 2011-2012. Defendants argue that Plaintiff had no ...


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