Mohamed Seif v. Cassandra Tarver-Ross

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13131

Non-Argument Calendar

____________________

MOHAMED A. SEIF,

Ph.D.,

Plaintiff-Appellee,

versus

ALABAMA AGRICULTURAL &

MECHANICAL UNIVERSITY, et al.,

Defendants,

CASSANDRA TARVER-ROSS,

Director of Human Resources for Alabama

A & M University, in her official and individual

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2 Opinion of the Court 22-13131

capacities,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 5:15-cv-02374-MHH

____________________

Before LUCK, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Alabama Agricultural and Mechanical University (“Alabama

A&M”) professor Mohamed Seif sued the university’s human re-

sources director, Cassandra Tarver-Ross, under 42 U.S.C. section

1983. Seif claims that Tarver-Ross denied him procedural due pro-

cess by closing his internal grievance, which requested a salary in-

crease.

Tarver-Ross appeals the district court’s denial of her sum-

mary judgment motion asserting qualified immunity. Because we

conclude she is entitled to qualified immunity, we reverse and re-

mand for the district court to enter summary judgment for Tarver-

Ross on the procedural due process claim.

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22-13131 Opinion of the Court 3

FACTUAL BACKGROUND

Seif immigrated to the United States from Egypt. He joined

Alabama A&M’s faculty in 2002 as an associate professor in its col-

lege of engineering. He became a tenured professor in 2006.

A faculty handbook outlines Alabama A&M’s expectations

for its faculty. But “it is not a contract.” Instead, the handbook “is

a collection of polices and procedures that govern action uniquely

pertaining to . . . faculty.” The handbook “caution[s]” that its poli-

cies “are subject to change . . . when the [u]niversity deems appro-

priate in its sole and exclusive discretion.” The handbook requires

that faculty sign an acknowledgment stating that the handbook’s

“policies and procedures are subject to change and do not consti-

tute a contractual agreement.”

The handbook identifies department chairpersons as being

the “chief administrator[s]” of their respective departments. The

chairs must “report[] to the [d]ean of his/her respective [s]chool”

and “serve[] in [an] at-will position . . . at the pleasure of the [p]res-

ident.” In 2007, soon after Seif obtained tenure, Alabama A&M ap-

pointed Seif to be the mechanical engineering department’s acting

chair. When Seif became an acting chair, Alabama A&M paid Seif

$14,400, through $1,200 monthly installments, on top of his base

faculty salary. In 2008, the university made Seif the mechanical en-

gineering department’s permanent chair and continued paying Seif

the $14,400 of annual supplemental compensation.

Soon after he became permanent chair, Seif wrote a memo

to the interim provost and vice president of academic affairs,

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4 Opinion of the Court 22-13131

claiming that the university miscalculated his base salary. Seif ex-

plained that the university based his salary on two years of employ-

ment at Alabama A&M, when it should have paid him based on

five years. The interim provost disagreed and notified Seif that his

salary would not be adjusted. The university did increase his base

salary by five percent about a month later as part of a blanket in-

crease for all chairs.

In 2011, Alabama A&M merged its mechanical and civil en-

gineering programs into one new department. Seif became the

new department’s first chair and requested another increase of his

base salary. Seif wrote a memo to the new provost and vice presi-

dent for academic affairs, Daniel Wims, saying that he was the low-

est paid chair despite other chairs being new hires and associate

professors. Two of Seif’s colleagues wrote memos to Wims sup-

porting Seif’s request. Wims denied the request, saying it wasn’t

feasible to adjust salaries on a case-by-case basis at that time.

Seif filed a “Faculty Grievance/Complaint Form” against

Wims with Alabama A&M’s Department of Human Resources.

Seif’s grievance alleged that Wims discriminated by denying Seif

equal pay relative to other department chairs. He requested “cor-

rective action” of “[e]qual pay of $118,404.00.”

A three-member faculty committee reviewed Seif’s griev-

ance and deemed it “grievable” under Alabama A&M’s faculty

handbook. Tarver-Ross, director of the Office of Human Re-

sources, wrote Seif a letter notifying Seif that the committee found

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22-13131 Opinion of the Court 5

that the “grievance [wa]s grievable” and explaining the grievance

process’s next steps.

Ten days later, Tarver-Ross wrote Seif a second letter saying

that “[u]nfortunately, after further review,” Seif’s grievance was

not grievable. Tarver-Ross cited the “Grievance Procedures, Eligi-

bility” provision of the faculty handbook, which provides:

Eligibility: Eligibility to participate in the grievance

process is limited to [u]niversity faculty or those who

were faculty when the situation arose. If a faculty

member is employed by both a related foundation, an

institute or an entity associated with Alabama A&M

University for which Alabama A&M University serves

as the fiscal agent . . . or an entity outside of the [u]ni-

versity . . . for which the faculty member has a split-

appointment, he/she is required first to follow the

procedures as outlined by the other entity before be-

ginning the grievance process at the University. Even

then, the faculty member can only enter into the

[u]niversity grievance process if the situation con-

cerns the faculty portion of their appointment and

then only to the extent and only for those issues re-

lated to the faculty assignment may be considered in

this grievance process.

Tarver-Ross explained that because Seif’s grievance claimed other

chairs had higher base salaries, his grievance related to his chair as-

signment—not his “faculty assignment.” The letter told Seif that

his grievance was thus “considered closed.”

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Seif then filed a discrimination charge with the Equal Em-

ployment Opportunity Commission, alleging Alabama A&M paid

him less than other chairs based on his Egyptian national origin.

The EEOC closed its file on Seif’s charge without finding any stat-

utory violations by Alabama A&M.

PROCEDURAL HISTORY

After the EEOC closed its file, Seif filed this case against Al-

abama A&M’s board of trustees, Alabama A&M’s president, Wims,

and Tarver-Ross. His complaint alleged race and national origin

discrimination claims against the board, president, and Wims un-

der Title VII and 42 U.S.C. section 1981. The complaint also al-

leged a procedural due process claim against the president, Wims,

and Tarver-Ross under section 1983, alleging specifically Seif

“maintained a property right in the grievance and grievance pro-

cess.”

The district court dismissed Seif’s claims to the extent he

sued the individual defendants in their official capacities, which left

only individual capacity claims. All defendants eventually moved

for summary judgment on the remaining claims. Tarver-Ross, for

her part, argued Seif had no constitutionally protected property in-

terest in a grievance hearing. And she argued that even if Seif did,

she was entitled to qualified immunity because Seif could not show

that she violated clearly established law. Seif responded that our

decision in Barnes v. Zaccari, 669 F.3d 1295 (11th Cir. 2012), where

we considered a university’s expulsion of a student without a

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hearing as required by university policy, clearly established he was

entitled to a grievance hearing.

The district court denied the summary judgment motion as

to Tarver-Ross but otherwise granted the motion. As relevant for

this appeal, the district court first found that the faculty handbook

assured Seif he would be able to grieve a salary-related complaint.

Thus, the district court reasoned, Tarver-Ross deprived Seif of a

property interest by closing his grievance without any hearing.

The district court then found Tarver-Ross acted within her

discretionary authority by closing Seif’s grievance, but it agreed

with Seif that she violated clearly established law when she did.

The district court disagreed with Seif that Barnes was a materially

similar case to this one. But, the district court reasoned, Barnes “es-

tablished the broad principle that a university, through its internal

polices . . . [,] may not assure those subject to the internal policies

that they will receive process in a particular situation, only to later

reverse course when the interested party seeks access to the pro-

cess.”

1

This is Tarver-Ross’s appeal.

1

Seif has not filed any appellate brief. We “must still determine as best [we]

can the merits of the appeal and reverse only if [we] decide[] that the appeal is

indeed meritorious.” Pasha v. Gonzales, 433 F.3d 530, 535 (7th Cir. 2005) (not-

ing the Federal Rules of Appellate Procedure do not require an appellee to file

a brief).

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8 Opinion of the Court 22-13131

STANDARD OF REVIEW

We review de novo a district court’s denial of qualified im-

munity at summary judgment. English v. City of Gainesville, 75 F.4th

1151, 1155 (11th Cir. 2023). We view all evidence “in the light most

favorable to the nonmoving party.” Townsend v. Jefferson County,

601 F.3d 1152, 1157 (11th Cir. 2010) (quoting Crosby v. Monroe

County, 394 F.3d 1328, 1332 (11th Cir. 2004)); see also Priester v. City

of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000) (“[W]e take

the ‘facts’ in the light most favorable to the plaintiff and determine

the legal issue of whether the plaintiff’s ‘facts’, if proven, show that

the defendant violated clearly established law.”).

DISCUSSION

“Qualified immunity shields government employees from

suit in their individual capacities for discretionary actions they per-

form while going about their duties.” Brooks v. Miller, 78 F.4th

1267, 1279 (11th Cir. 2023). The immunity balances “the need to

hold public officials accountable when they exercise power irre-

sponsibly and the need to shield officials from harassment, distrac-

tion, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). So as long as the offi-

cial “acted in an objectively reasonable manner,” the immunity will

apply. Malley v. Briggs, 475 U.S. 335, 341 (1986) (“[Qualified immun-

ity] provides ample protection to all but the plainly incompetent or

those who knowingly violate the law.”).

We apply a burden-shifting framework to determine if an

official is entitled to qualified immunity. Brooks, 78 F.4th at 1280.

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22-13131 Opinion of the Court 9

The official asserting immunity must first “show that [she] was act-

ing within the scope of his discretionary authority.” Id. If the offi-

cial does that, the burden shifts to the plaintiff to show that quali-

fied immunity doesn’t apply. Id. A plaintiff shows the immunity

doesn’t apply by establishing (1) “the defendant violated a consti-

tutional right” and (2) “the right was ‘clearly established.’” Davis v.

Waller, 44 F.4th 1305, 1312 (11th Cir. 2022) (quoting Corbitt v. Vick-

ers, 929 F.3d 1304, 1311 (11th Cir. 2019)).

Tarver-Ross satisfied her initial burden of showing she acted

2

within her discretionary authority by closing Seif’s grievance. Seif

filed his grievance with the Office of Human Resources and Tarver-

Ross was the office’s director. That means Seif must show immun-

ity doesn’t apply here. See Brooks, 78 F.4th at 1280.

A plaintiff shows a procedural due process violation by prov-

ing three elements: “(1) a deprivation of a constitutionally-pro-

tected liberty or property interest; (2) state action; and (3) constitu-

tionally-inadequate process.” Resnick v. KrunchCash, LLC, 34 F.4th

1028, 1035 (11th Cir. 2022) (quoting Grayden v. Rhodes, 345 F.3d

1225, 1232 (11th Cir. 2003)). “Property,” in this context, “denotes

a broad range of interests that are secured by existing rules or un-

derstandings.” Barnes, 669 F.3d at 1303 (quoting Perry v. Sinder-

mann, 408 U.S. 593, 601 (1972)). Those interests “are not created

2

In the district court, Seif did not dispute that Tarver-Ross satisfied her initial

burden. Indeed, citing Tarver-Ross’s letter about closing his grievance, he ar-

gued that grievances “cannot be processed without the acts of Tarver-Ross.”

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10 Opinion of the Court 22-13131

by the Constitution,” Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972), and instead must stem from an “independent

source” grounded in state law—such as a statute, contract, or “mu-

tually explicit understanding,” Barnes, 669 F.3d at 1303 (citations

omitted).

We need not decide whether the district court correctly

found that Seif’s facts, taken as true, actually establish all three ele-

ments of a procedural due process claim. In determining whether

Seif satisfied his burden, “courts have discretion to decide which of

the two prongs of qualified-immunity analysis to tackle first.” Ash-

croft v. al-Kidd, 563 U.S. 731, 735 (2011). There are “cases in which

a court [can] rather quickly and easily decide that there was no vi-

olation of clearly established law before turning to the more diffi-

cult question whether the relevant facts make out a constitutional

question at all.” Pearson, 555 U.S. at 239. And this is one of those

cases. No clearly established law gave Tarver-Ross “fair warning”

that Seif was entitled to grieve his salary dispute. Corbitt, 929 F.3d

at 1312 (“[T]he ‘salient question’ is whether the state of the law

gave the defendants ‘fair warning’ that their alleged conduct was

unconstitutional.” (cleaned up) (quoting Vaughan v. Cox, 343 F.3d

1323, 1332 (11th Cir. 2003))).

A plaintiff can show that the law clearly established a right

in three ways. See Davis, 44 F.4th at 1312–13. First, a plaintiff can

point to “a materially similar case” of the Supreme Court, this

court, or the relevant state supreme court holding the challenged

conduct is unlawful. Id. at 1312 (citation omitted). A materially

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similar case does not have to be exactly on point, but it still “must

have placed the statutory or constitutional question beyond de-

bate.” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Mullenix v.

Luna, 577 U.S. 7, 12 (2015)).

Second, a plaintiff can point to a “broader, clearly established

principle [that] should control the novel facts of a particular case.”

Davis, 44 F.4th at 1312. Case law must establish the principle “with

‘obvious clarity’ . . . so that ‘every objectively reasonable govern-

ment official facing the circumstances would know that [her] con-

duct did violate federal law when [she] acted.’” Terrell v. Smith, 668

F.3d 1244, 1256 (11th Cir. 2012) (quoting Vinyard v. Wilson, 311 F.3d

1340, 1351 (11th Cir. 2002)). “For example, if some authoritative

judicial decision decides a case by determining that ‘X Conduct’ is

unconstitutional without tying that determination to a particular-

ized set of facts, the decision on ‘X Conduct’ can be read as having

clearly established a constitutional principle.” Vinyard, 311 F.3d at

1351. Or “put differently, the precise facts surrounding ‘X Con-

duct’ are immaterial to the violation.” Id.

Third, a plaintiff can show the defendant’s conduct “so ob-

viously violates the Constitution that prior case law is unneces-

sary.” Davis, 44 F.4th at 1313 (cleaned up).

Applying that three-part framework here, Seif failed to sat-

isfy his burden. No materially similar case established Seif was en-

titled to grieve his salary dispute. That includes our decision in

Barnes, which Seif cited in the district court. In Barnes, a university

president created plans to build a new parking deck on campus. 669

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F.3d at 1298–99. The president “‘administratively withdrew’ (ex-

pelled),” without any notice or hearing, a student who protested

the project. Id. at 1298, 1300–01. After the student sued the presi-

dent for denying due process, we held qualified immunity didn’t

apply. Id. at 1309. We first concluded the student had “a property

interest in his enrollment,” citing how university policies only al-

lowed suspensions or expulsions for cause. Id. at 1303–06. We then

concluded the university’s policies, themselves, clearly established

the student’s right to continued enrollment because it “repeatedly

assure[d] . . . students that they will receive due process before be-

ing suspended or expelled.” Id. at 1307; see also id. at 1304 (noting

university policy “promise[d]” students they would not be disci-

plined without cause).

As applied to this case, Barnes plainly does not “place[]

the . . . constitutional question beyond debate.” White, 580 U.S. at

79 (quoting Mullenix, 577 U.S. at 12). The property right at stake in

Barnes was a college student’s “interest in his enrollment.” 669 F.3d

at 1305. Unlike Barnes, though, this case doesn’t involve a student’s

right to enrollment or a university’s authority to expel students.

This case is about whether a faculty member and department chair

can grieve a salary dispute under faculty-specific policies. Seif’s

complaint alleged that he maintained a property right in the denied

grievance itself. Those differences mean Barnes is not “‘particular-

ized’ to the facts of th[is] case.” White, 580 U.S. at 79 (quoting An-

derson v. Creighton, 483 U.S. 635, 640 (1987)); see also Corbitt, 929 F.3d

at 1311–12 (“[O]fficials are not obligated to be creative or imagina-

tive in drawing analogies from previously decided cases . . . .”

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(quoting Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir. 2011)). We

are aware of no other binding case law that is particularized to the

facts here. So we agree with the district court that no materially

similar case established Seif was entitled to grieve his salary dispute.

We part ways, however, with the district court’s analysis of

whether a “broader, clearly established principle” gave Tarver-

Ross fair warning that Seif had a protected property interest. Davis,

44 F.4th at 1312. The district court found Barnes clearly established

a broad principle that a university’s internal policies cannot prom-

ise any person (not just students) process and later reverse course

when that person tries to use it.

That principle stretches Barnes too broadly. Cf. Corbitt, 929

F.3d at 1316 (“[T]he Supreme Court—with palpable frustration—

[has] reiterated ‘the longstanding principle that clearly established

law should not be defined at a high level of generality.’” (quoting

White, 580 U.S. at 79)). Barnes did not establish “obvious clarity”

that university employees have a property interest in any and all

internal dispute processes. Terrell, 668 F.3d at 1256 (quoting

Vinyard, 311 F.3d at 1351). Instead, we tied our decision in Barnes

“to [the] particularized facts” of that case. Vinyard, 311 F.3d at 1351.

The Barnes university’s internal policies “repeatedly assure[d] . . .

students that they will receive due process before being suspended

or expelled.” Barnes, 669 F.3d at 1307–08. We said nothing in

Barnes about university policies as applied to nonstudents, much

less anything about university policies governing internal employ-

ment dispute procedures.

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Even if we held in Barnes “that ‘X Conduct’ is unconstitu-

tional without tying that determination to a particularized set of

facts,” Vinyard, 311 F.3d at 1351, this case doesn’t involve X Con-

duct. The university policies in Barnes “made . . . assurances” that

“students . . . w[ould] receive due process,” and then the university

broke its promise. 669 F.3d at 1307. There is no evidence of a bro-

ken promise here. The undisputed facts show Alabama A&M did

not assure or “promise[]” Seif that he would be entitled to file a

grievance. Id. at 1304; cf. id. at 1303 (property interests must stem

from an independent source such as a contract or “mutually ex-

plicit understanding” (citations omitted)). The handbook expressly

“caution[ed]” faculty members that its procedures were “subject to

change . . . when the [u]niversity deems appropriate in its sole and

exclusive discretion.” And it required that faculty acknowledge

that the handbook was “not a contract” of any kind. So even if

Seif’s salary dispute was grievable under the handbook when he

first filed it, Alabama A&M retained discretion to deviate from its

policy unlike the university in Barnes.

That fact difference between this case and Barnes is not “im-

material.” Vinyard, 311 F.3d at 1351. No Alabama case law, statute,

or university regulation clearly entitled Seif to file a grievance with-

out Alabama A&M “revers[ing] course” on its handbook. Barnes,

669 F.3d at 1307. Under Alabama law, an employee handbook is

generally not a contract enforceable against one’s employer if it

“contains express disclaimers reserving the [employer]’s right to

deviate from all the policies stated in that handbook.” Stinson v.

Am. Sterilizer Co., 570 So. 2d 618, 621–22 (Ala. 1990); see also

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Hoffman-LaRoche, Inc. v. Campbell, 512 So. 2d 725, 734 (Ala. 2012).

In Porter v. Hugine, for example, the Alabama Court of Civil Appeals

rejected an Alabama A&M employee’s claim “that he was entitled

to a ‘grievance hearing’” under an older version of the faculty hand-

book because Alabama A&M reserved discretion to deviate from

its handbook policies. 101 So. 3d 1228, 1237–38 (Ala. Civ. App.

2012). Porter is not a decision of the Alabama Supreme Court, to

be sure, but “non-binding persuasive authority can . . . indicate that

a particular constitutional right is not clearly established.” Corbitt,

929 F.3d at 1319 n.14. Porter does that here.

That leaves the third method of clearly establishing the

law—showing that the defendant’s conduct “so obviously violates

the Constitution that prior case law is unnecessary.” Davis, 44 F.4th

at 1313 (cleaned up). Seif did not show that closing a university

employee’s internal grievance is “so egregious” such that it obvi-

ously violates the Constitution. Lewis v. City of West Palm Beach,

561 F.3d 1288, 1292 (11th Cir. 2009).

Because we cannot say Tarver-Ross acted in an objectively

unreasonable manner, she is entitled to qualified immunity. Mal-

ley, 475 U.S. at 341.

CONCLUSION

We reverse the part of the district court’s order denying

qualified immunity, and we remand with instructions to enter

judgment for Tarver-Ross on Seif’s procedural due process claim.

REVERSED and REMANDED.