DePree v. Saunders

REVISED November 13, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 08-60978 November 12, 2009

Charles R. Fulbruge III

Clerk

CHAUNCEY M DEPREE, JR

Plaintiff-Appellant

v.

MARTHA SAUNDERS, Individually and as President of the University of

Southern Mississippi; DARRELL J GRIMES, Individually as a former

Provost, University of Southern Mississippi; ALVIN J WILLIAMS,

Individually and as Interim Dean of the College of Business, University of

Southern Mississippi; STEVEN JACKSON, Individually and as Interim

Director of the School of Professional Accountancy and Information Systems;

STANLEY X LEWIS, Individually and as former Director of the School of

Professional Accountancy and Systems; FARHANG NIROOMAND,

Individually and as former Associate of Dean of the College of Business;

D HAROLD DOTY, Individually and as former Dean of the College of

Business; PATRICIA MUNN, Individually; JOHN ALBERT BROWN,

Individually; JAMES HENDERSON, Individually; MARY ANDERSON,

Individually; RODERICK POSEY, Individually; CHARLES JORDAN,

Individually; GWENDOLYN PATE, Individually; JOHN DOES 1-80

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit

Judges.

No. 08-60978

EDITH H. JONES, Chief Judge:

Dr. DePree, a tenured professor, sued the University of Southern

Mississippi’s president and various administrators and faculty members

(“Appellees”) after he was removed from teaching duties in August 2007 and

evicted from his office in the College of Business. The district court granted

summary judgment in favor of the Appellees and denied DePree’s motion for

temporary and permanent injunctive relief. On appeal, we AFFIRM the

judgment in favor of the individual defendants but REVERSE and REMAND for

further consideration of injunctive relief.

BACKGROUND

In August 2007, Dr. Martha D. Saunders, the University’s president,

received a letter from Alvin J. Williams, Interim Dean of the College of Business.

The letter stated that, “Dr. DePree has engaged in behaviors that have severely

constrained the capacity of SAIS [School of Accountancy and Information

Systems] and the College of Business” and that DePree had helped to create “an

environment in which faculty members and students do not feel safe to go about

their usual business.” Williams described specific and ongoing instances of what

he perceived to be DePree’s negative and disruptive behavior. Williams also

asserted that DePree was the only Accounting faculty member who had failed

to “engage in the scholarly or professional activities necessary to be labeled

‘academically-qualified’ or ‘professionally-qualified’ by the University’s accredit-

ing agency, AACSB [Association to Advance Collegiate Schools of Business].”

Enclosed with this letter were eight other letters from professors who described

DePree’s disruptive and intimidating behavior.

Saunders wrote to DePree that she was referring the complaints to the

Provost for further proceedings and was relieving DePree of all teaching

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No. 08-60978

functions and service obligations to the University. He was instructed not to

enter the business school except to retrieve personal items, but he should

continue his research activities with access to the University computer system

and library. At Saunders’s request, the Provost directed the university

Ombudsman to investigate all charges against DePree.

DePree filed suit within weeks of receiving the letter. He asserted that the

Appellees retaliated against him because he maintains a website that is critical

of the University and some of its faculty and administrators and because he

complained to the accreditation agency (AACSB) about the school. DePree

alleged First Amendment retaliation, Due Process violations, and various state

law claims. The district court denied his request for a TRO.

Pursuant to the University Ombudsman’s recommendation issued in a

December report, Saunders advised DePree that the University intended to

enlist the services of a mental health professional to assess his fitness to teach;

that he had to produce sufficient scholarly work to satisfy independent

professionals; and that the restrictions in her previous letter would remain in

place. To this court’s knowledge, the University has taken no further action

since that time. DePree’s pay, benefits, title and tenure have remained as they

were before these events occurred. DePree, however, has refused to undergo a

mental health evaluation or to comply with the professional research

requirements.

The district court granted the Appellees’ motion for summary judgment.

The court held that DePree failed to show a constitutional violation because he

had not been subjected to an adverse employment action and did not have a

protectible property interest in teaching as opposed to research. The court also

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No. 08-60978

rejected DePree’s state law claims on the merits and, alternatively, on the basis

of state law qualified immunity. DePree has appealed.

DISCUSSION

This court reviews the district court’s grant of summary judgment de novo,

applying the same standards as the district court. Freeman v. Tex. Dep’t of

Criminal Justice, 369 F.3d 854, 859–60 (5th Cir. 2004). Summary judgment is

warranted if “the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

We address DePree’s constitutional claims first, followed by his state law claims.

A. First Amendment

DePree contends that his right to freedom of speech was infringed by

Saunders’s disciplinary actions taken in retaliation for his website and his

complaints filed with the AACSB. To establish a constitutional claim for First

Amendment retaliation, four elements must be shown: (1) that plaintiff

“suffered an ‘adverse employment decision’”; (2) that the plaintiff’s “speech

involved a ‘matter of public concern’”; (3) that the plaintiff’s “‘interest in

commenting on matters of public concern . . . outweighs the [d]efendant’s

interest in promoting [workplace] efficiency’”; and (4) that the plaintiff’s speech

motivated the defendant’s action. Beattie v. Madison County Sch. Dist., 254 F.3d

595, 601 (5th Cir. 2001) (quoting Harris v. Victoria Indep. Sch. Dist., 168 F.3d

216, 220 (5th Cir. 1999)). See also Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct.

1951 (2006). The parties do not here dispute the second and third factors, which

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No. 08-60978

bear on the constitutional protection afforded DePree’s speech.1 Appellees

contend, however, and the trial court agreed, that DePree did not establish an

adverse employment action because all tangible accoutrements of his

position—except teaching duties—remained stable. Appellees also contend that

in light of DePree’s outbursts of disruptive conduct, his protected speech was not

a “substantial” or “motivating” factor leading to the terms of discipline. Brady

v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1423 (5th Cir. 1997) (citing Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283–87, 97 S. Ct. 568,

574–76 (1977)).

To analyze the liability of the Appellees sued in their individual capacity,

we will assume arguendo that DePree’s evidence raised genuine, material fact

issues sufficient to withstand summary judgment. Even so, the court correctly

granted summary judgment because Saunders, the ultimate decision-maker, is

shielded by qualified immunity, and the other Appellees, both faculty and

administrators, merely contributed to her decision-making process.

First, if DePree’s speech was constitutionally protected, Saunders was

entitled to qualified immunity because her conduct did not violate a clearly

established constitutional right. Foley v. Univ. of Houston Sys., 355 F.3d 333,

337 (5th Cir. 2003). “Qualified immunity protects public officials from suit

unless their conduct violates a clearly established constitutional right.” Mace v.

City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). The qualified immunity

standard “gives ample room for mistaken judgments,” Malley v. Briggs, 475 U.S.

335, 343, 106 S. Ct. 1092, 1097 (1986), by protecting “all but the plainly

1

Whether DePree’s speech would receive protection following Garcetti v. Ceballos,

supra, is not clear on the incomplete record before us, but we do not go behind the parties’

current positions.

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No. 08-60978

incompetent or those who knowingly violate the law.” Id. at 341, 1096. Thus,

a public official is entitled to qualified immunity unless a plaintiff demonstrates

(1) a violation of a constitutional right and (2) that the right at issue was clearly

established at the time of the violation. Pearson v. Callahan, ___ U.S. ___,

129 S. Ct. 808, 815–16 (2009). Following Pearson, a court has discretion to

render judgment on an official’s qualified immunity without reaching the first

question. Id. at 818.

Here, no clearly established law informed Saunders that the particular

discipline she imposed, which fell far short of demotion or removal, constituted

an adverse employment action. In the educational context, this court has held

that “[a]ctions such as ‘decisions concerning teaching assignment, pay increases,

administrative matters, and departmental procedures,’ while extremely

important to the person who has dedicated his or her life to teaching, do not rise

to the level of a constitutional deprivation.” Harrington v. Harris, 118 F.3d 359,

365 (5th Cir. 1997) (quoting Dorsett v. Bd. of Trs. for State Colleges & Univs., 940

F.2d 121, 123 (5th Cir. 1991)). These cases undermine DePree’s assertion that

he suffered an actionable adverse employment decision. In 2006, however, the

Supreme Court held that for purposes of a Title VII retaliation claim, an adverse

employment action is one that “a reasonable employee would have found . . . [to

be] materially adverse, ‘which in this context means it well might have

dissuaded a reasonable worker from making or supporting a charge of

[retaliation].’” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126

S. Ct. 2405, 2415 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.

Cir. 2006)). Because this court has not formally applied Burlington to First

Amendment retaliation claims, the interrelation among Harrington, Dorsett, and

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No. 08-60978

Burlington yields no “clearly established law” that Saunders would have known

she was violating by revoking DePree’s teaching duties and access to the

business school. At most, these cases create a fact issue to whether DePree

suffered a material adverse employment action. Similarly, no clearly established

law dictated that Saunders could not impose discipline, notwithstanding a few

references to DePree’s “speech,” in light of the uniform reports about his

intimidating and disruptive behavior. In sum, this court cannot conclude that

Saunders’s action was objectively unreasonable, “assessed in light of the legal

rules that were clearly established at the time it was taken.” Pearson, 129 S. Ct.

at 822 (quoting Wilson v. Layne, 526 U.S. 603, 614, 119 S. Ct. 1692, 1699 (1999)).

In First Amendment retaliation cases , “[t]here will rarely be a basis for a priori

judgment that the termination or discipline of a public employee violated ‘clearly

established’ constitutional rights.” Noyola v. Tex. Dep’t of Human Res., 846 F.2d

1021, 1025 (5th Cir. 1988).

Second, with respect to the other Appellees, “only final decision-makers

may be held liable for First Amendment retaliation employment discrimination

under § 1983.” Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004). The

statements and actions of ordinary employees or co-workers may not normally

be imputed to the employer. Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir.

1996). “Nevertheless, when the person conducting the final review serves as the

‘cat’s paw’ of those who were acting from retaliatory motives, the causal link

between the protected activity and adverse employment action remains intact.”

Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002). DePree asserts that, although

Saunders was the final decision-maker in his case, the remaining Appellees may

be liable under the cat’s paw exception.

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No. 08-60978

To support this theory, DePree was required to “submit evidence sufficient

to establish two conditions: (1) that a co-worker exhibited [retaliatory] animus,

and (2) that the same co-worker ‘possessed leverage, or exerted influence, over

the titular decisionmaker.’ ” Roberson v. Alltel Info. Servs., 373 F.3d 647, 653

(5th Cir. 2004) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227

(5th Cir. 2000)). Regardless of any evidence of retaliatory animus, DePree

offered no evidence that the other Appellees exerted influence over Saunders in

such a way as to co-opt her decision making. Unlike cases in which this court

has discerned a triable fact issue on a cat’s-paw theory, see, e.g., Long, 88 F.3d

at 307, the faculty members who authored letters to Saunders were neither

supervisors of DePree nor part of a committee tasked with overseeing his work.

They did not have authority to make recommendations concerning his employ-

ment status, and their opinions were entitled to no special weight because of

their positions. Notably, the measures put in place by Saunders were not

recommended in any of these letters, and she was entitled to rely on the

Ombudsman’s wholly dispassionate conclusions and recommendations.

A jury issue can arise from a decision-maker’s reliance on the views of

supervisors rather than her findings from an independent investigation. See,

e.g., Gee, 289 F.3d at 346–47 (holding that plaintiff provided sufficient evidence

that the final decision-maker was improperly influenced by the plaintiff’s

supervisor against whom the plaintiff had filed a sexual harassment complaint).

That is not the case here. Saunders acted in response to written comments from

numerous non-supervisory employees, and she commissioned a neutral

investigation. She could not be a cat’s paw of those who had no “influence or

leverage over” her final employment decisions. See Price Waterhouse v. Hopkins,

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No. 08-60978

490 U.S. 228, 277, 109 S. Ct. 1775, 1804–05 (1989) (O’Connor, J., concurring)

(“Nor can statements by nondecisionmakers . . . suffice to satisfy the plaintiff’s

burden . . . .”). The other Appellees did not stand in such a relationship to

Dr. Saunders as to make her their cat’s paw; hence they could not be liable for

the discipline imposed on DePree.

Notwithstanding that DePree may not pursue this action against the

Appellees individually, DePree’s claim against University administrators in

their official capacity may yield prospective injunctive relief. See Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989). Issues

surrounding the protected status of the speech, whether there is an actionable

adverse action, and whether Saunders could have legitimately disciplined

DePree for his conduct despite some element of First Amendment retaliation are

factually complex. Further, the late intervention of the Ombudsman report and

Saunders’s response to it have created a factual moving target. Due to these

uncertainties, we remand DePree’s injunctive claim based on First Amendment

retaliation for further development.

B. Due Process

DePree contends that the Appellees violated the Due Process Clause by

preventing him from teaching and denying him access to the business school.

The threshold requirement of any due process claim is the government’s

deprivation of a plaintiff’s liberty or property interest. See Moore v. Miss. Valley

State Univ., 871 F.2d 545, 548 (5th Cir. 1989). Without such an interest, “no

right to due process accrues.” Id. The district court concluded that because

DePree’s tenure, salary and title remained intact, and he had no property

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No. 08-60978

interest in teaching, he had not been deprived of a constitutional property right.

We agree.

A “person’s interest in a benefit is a ‘property’ interest for due process

purposes if there are . . . rules or mutually explicit understandings that support

[the] claim of entitlement to the benefit . . . .” Perry v. Sinderman, 408 U.S. 593,

601, 92 S. Ct. 2694, 2699 (1972). Constitutionally protected property interests

are created and defined by understandings that “stem from an independent

source such as state law . . . .” Bd. of Regents v. Roth, 408 U.S. 564, 577,

92 S. Ct. 2701, 2709 (1972). Courts have held that no protected property interest

is implicated by reassigning or transferring an employee absent a specific

statutory provision or contract term to the contrary. See Kelleher v. Flawn,

761 F.2d 1079, 1087 (5th Cir. 1985). See also Maples v. Martin, 858 F.2d 1546,

1550–51 (11th Cir. 1988); Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir. 2003);

Wagner v. Tex. A&M Univ., 939 F. Supp. 1297, 1312 (S.D. Tex. 1996). DePree’s

reliance on the faculty handbook is inapposite, nor has he pointed to any

Mississippi law or contract between him and the University reflecting an

understanding that he has a unique property interest in teaching.

DePree also asserts that his liberty interest was violated because he was

stigmatized by the discipline process. See Kelleher, 761 F.2d at 1087. To the

contrary, there is no evidence that Saunders or any of the other Appellees made

public charges against DePree. Further, “mere injury to reputation, even if

defamatory, does not constitute the deprivation of a liberty interest.” Finch v.

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Fort Bend Indep. Sch. Dist., 333 F.3d 555, 561 n.3 (5th Cir. 2003) (citing Paul v.

Davis, 424 U.S. 693, 711–12, 96 S. Ct. 1155, 1165–66 (1976)).2

C. State Law Claims

Turning to DePree’s state law claims, the district court held that DePree

could not establish breach of contract because his salary and benefits remained

unaffected, precluding a finding of damages. DePree did not raise this issue in

his initial brief but addressed it only in his reply brief. “This court will not

consider a claim raised for the first time in a reply brief.” Yohey v. Collins,

985 F.2d 222, 225 (5th Cir. 1993). Accordingly, this issue is waived on appeal

and we do not consider it.

DePree’s complaint also asserted various state law tort claims, including

tortious interference with business relations, intentional infliction of emotional

distress, breach of contractual duty of good faith and fair dealing, defamation,

and assault. The district court held that DePree had not exhausted his

administrative remedies as required by the Mississippi Tort Claims Act

(“MTCA”). Alternatively, the court held that even if DePree had complied with

the procedural requirements of the MTCA, the claims still failed because the

Appellees were protected by sovereign immunity. DePree contends on appeal

that the MTCA does not apply to the claims he has alleged because they involve

fraud, malice, libel, slander, and defamation.

The MTCA provides:

2

DePree makes a fleeting reference in his brief to a blog post that was published

shortly after Saunders’s action on August 22, 2007. He infers that Saunders or someone else

disclosed or published adverse information. There is, however, no record citation for this blog,

nor anything other than DePree’s speculation linking Appellees to the blog.

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An employee may be joined in an action against a governmental

entity in a representative capacity if the act or omission complained

of is one for which the governmental entity may be liable, but no

employee shall be held personally liable for acts or omissions

occurring within the course and scope of the employee’s duties. For

the purposes of this chapter an employee shall not be considered as

acting within the course and scope of his employment and a

governmental entity shall not be liable or be considered to have

waived immunity for any conduct of its employee if the employee’s

conduct constituted fraud, malice, libel, slander, defamation or any

criminal offense.

MISS. CODE ANN. § 11-46-7(2) (2009).

The Mississippi Supreme Court has made clear that only the intentional

torts listed in the MTCA preclude an individual’s claim of immunity. Duncan

v. Chamblee, 757 So. 2d 946, 950 (Miss. 1999). Thus, the Appellees are shielded

by the MTCA from DePree’s claims for tortious interference with business

relations, intentional infliction of emotional distress, and breach of contractual

duty of good faith and fair dealing because they were all acting within the course

and scope of their employment.

As Appellees concede, DePree’s remaining claims of defamation and

assault fall outside the protections of the MTCA. Regardless, the summary

disposition of DePree’s defamation claim can be affirmed on other grounds that

were argued below. Defamation requires, among other things, “unprivileged

publication to a third party.” Stephens v. Kemco Foods, Inc., 928 So. 2d 226, 233

(Miss. Ct. App. 2006). Saunders’s affidavit states that she did not publish or

reveal any of the charges against DePree, and DePree offers no admissible

evidence to refute Saunders’s assertion. DePree has failed to raise a genuine

issue of material fact that would allow his defamation claim to survive summary

judgment.

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This leaves only DePree’s assault claim against Appellee Niroomand.

Under Mississippi law, assault occurs where a person “(a) . . . acts intending to

cause a harmful or offensive contact with the person of the other or a third

person, or an imminent apprehension of such a contact, and (b) the other is

thereby put in such imminent apprehension.” Webb v. Jackson, 583 So. 2d 946,

951 (Miss. 1991). According to DePree, Niroomand “aggressively walk[ed]

toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-a-

bitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of

an imminent harmful or offensive contact.” Appellee Niroomand contends that

DePree’s apprehension was not reasonable. We agree. Taken in context, these

statements and actions could not create a reasonable apprehension of imminent,

harmful contact. DePree and Niroomand had squared off in similar past

confrontations without offensive contact. Nothing in the current claim suggests

DePree could have reasonably feared Niroomand just because he cursed and

rattled papers in DePree’s face. No triable fact issue of an assault arose here.

CONCLUSION

For the foregoing reasons, the judgment in favor of all Appellees sued in

their individual capacity is AFFIRMED. The judgment denying injunctive relief

is REVERSED and REMANDED for further consideration.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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