United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 2, 2006
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 04-60956
MELISSA WHITING,
Plaintiff-Appellant,
VERSUS
THE UNIVERSITY OF SOUTHERN MISSISSIPPI; SHELBY THAMAS, Dr.;
DANA THAMES, Dr.; CARL MASTRAY, Dr.;
Defendants-Appellees
Appeal from the United States District Court
For the Southern District of Mississippi
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Dr. Melissa Whiting was a non-tenured professor at the
University of Southern Mississippi (“USM”), whose annual
evaluations and third-year review were consistently excellent.
Nonetheless, she was denied tenure and promotion at the end of her
sixth year at USM after participating in the tenure application
process laid out in the Faculty Handbook. Dr. Whiting alleges that
the denial arose from ill will between her and her department
chair, Dr. Thames, the daughter of the USM president. Accordingly,
Dr. Whiting sued on several constitutional claims under 42 U.S.C.
1
§ 1983 and on state law-based contracts issues. The district court
dismissed the constitutional claims on a motion for summary
judgment and remanded the state-law claims to state court. Dr.
Whiting now appeals.
Because Dr. Whiting has failed to establish genuine questions
of material facts for key elements of her due process, equal
protection, and First Amendment retaliation claims under 42 U.S.C.
§ 1983, we affirm the district court’s motion for summary
judgment.1 As the only issues remaining are therefore questions of
state contract law, we find no abuse of discretion in the district
court’s order remanding those claims to state court.
BACKGROUND
In September 1996, Dr. Melissa Whiting became an assistant
professor in the Department of Curriculum, Instruction, and Special
Education in the College of Education and Psychology at USM. In May
1997, the Board of Trustees of the State Institutions of Higher
Learning approved her for tenure-track status. From 1996-2002, Dr.
Whiting and the Board executed nine-month employment contracts for
each of the six academic years that fell during that period. Those
contracts state that they are subject to the “laws of the State of
Mississippi and the policies and bylaws of the Board.”
1
Appellees also argue that they are not parties susceptible
to suit under § 1983. Because Dr. Whiting has clearly failed to
establish constitutional claims valid under § 1983, we do not
address this issue.
2
As a member of the USM faculty, Dr. Whiting received the
Faculty Handbook and the College of Education and Psychology Policy
and Procedures for Tenure and Promotion. These handbooks contain
language that notes “these procedures collectively constitute
contractual due process -- the sum total of the procedural
guarantees explicit and implicit [in the tenure process].” The
Faculty Handbook further provides for annual evaluations and, for
tenure-track faculty, a third year review. The Handbook also states
that successful tenure reviews neither promise nor guarantee
eventual tenure, which is only obtained by discretionary grant of
the Board of Trustees. The Faculty Handbook also states that
decisions regarding tenure are normally communicated to the
applicant by May 1.
During her time at USM, Dr. Whiting received five annual
evaluations, and in each received the highest marks in the
categories of teaching, research, and service. These same
categories are used as criteria in evaluating suitability for
tenure and promotion. Defendants Dr. Dana Thames and Dr. Carl
Martray prepared, reviewed, and/or signed each annual evaluation.
Dr. Whiting also underwent a third year review, based on the same
criteria, and again received top marks in the above categories.
At the beginning of her sixth year of employment, Dr. Whiting
submitted herself for consideration for both tenure and promotion
(to associate professor). As part of the process, she submitted a
dossier documenting her suitability for tenure and promotion. The
3
dossier focused on the three major areas highlighted in her prior
evaluations: teaching, scholarship and publication (research), and
service. Dr. Whiting alleges that her department chair, Dr. Thames,
intentionally provided Dr. Whiting with flawed advice, ordering her
not to include certain research materials in her dossier. Dr.
Whiting further alleges that during the tenure process Dr. Thames
and another faculty member, Dr. Reeves, “began a quest to scuttle
[her] career,” by intimating that Dr. Whiting had committed
academic fraud. Dr. Whiting further alleges that Dr. Thames sought
to isolate Dr. Whiting through departmental cliques and by placing
her in a separate building from the rest of the faculty. She also
alleges that Dr. Thames was displeased by Dr. Whiting’s remarks
about student rights that reflected poorly on Dr. Thames’
administration of the department.
USM’s review of Dr. Whiting’s application began with a
committee of faculty from her department. At their meeting,
questions arose over certain articles listed in the publication
section of her dossier. The committee chair and Dr. Thames met with
Dr. Whiting and requested a written response to these questions.
Dr. Whiting submitted her response, including an explanation of the
methodology and analysis used to write several of her published
articles. After the committee reconvened and considered her
response, it voted to award promotion, with six in favor, three
against, and two abstentions. The committee voted against awarding
tenure, however, with six against, four in favor, and one
4
abstention. The committee’s summary report notes a general
agreement that Dr. Whiting wait to request tenure until she had
completed her sixth year of teaching (a tenure candidate may
request deferral of the tenure process until the seventh year of
employment).
Both the committee chair and Dr. Thames notified Dr. Whiting
by separate letter of the committee’s conclusions and suggested
that she consider withdrawing her request for early tenure. Dr.
Thames prepared a written recommendation to the Dean of the College
of Education and Psychology, Dr. Carl Martray, regarding the
committee’s decisions. In that report, Dr. Thames expressed her
agreement with the committee’s concerns, but informed him that Dr.
Whiting still wished to move forward with both the tenure and
promotion processes.
Dr. Whiting’s dossier, as well as the recommendation to Dean
Martray and a rebuttal letter from Dr. Whiting, came before the
College Advisory Committee (“CAC”), a group of representatives from
each department in her College. The CAC noted the disparity between
Dr. Whiting’s high marks in her annual evaluations and the “more
negative” report of the tenure and promotion committee. After
undertaking its own review of Dr. Whiting’s credentials, the CAC
concluded “that it appeared that the annual evaluations of the
chairs in the past were more optimistic than the credentials
justified during many of the years.” The CAC’s report noted
concerns that Dr. Whiting’s body of work at that time “was not
5
adequate and did not meet college research standards.” The CAC
voted to deny tenure and promotion, each vote tallying to four
against and two in favor, with no abstentions. Dean Martray
reviewed the CAC recommendations and Dr. Whiting’s dossier,
concluding that he had “no compelling reason to recommend against
the CAC’s determination.” He transmitted Dr. Whiting’s materials to
the Provost, without recommendation for either promotion or tenure.
Dean Martray notified Dr. Whiting of his decision and included the
copies of the CAC’s reports, reminding her that she retained the
option to withdraw her application and request deferral to her
seventh year.
Dr. Whiting chose to continue with the promotion and tenure
process. Accordingly, her dossier came before the University
Advisory Council (“UAC”). The UAC met twice to review her
materials. On the advice of her attorney, Dr. Whiting declined
invitations to attend these meetings, and presented UAC members
with a letter alleging failures of due process and violation of her
due process rights under the Fourteenth Amendment. Ultimately, the
UAC voted to award tenure (five voted in favor, three against, and
one recusal), but did not reach a conclusion as to promotion (four
in favor, four against, and one recusal). Those votes, in addition
to another supplementary letter from Dr. Whiting, were then
submitted to the Provost, who concurred with the UAC’s
recommendation as to tenure, and further recommended promotion. He
notified Dr. Whiting of his recommendation by letter on May 17,
6
2002.
Dr. Whiting’s dossier thus came before University President
Shelby Thames, father of Dr. Dana Thames, who had taken that office
on May 1, 2002. On August 23, 2002, President Thames wrote to
request a meeting with Dr. Whiting to discuss concerns about her
application. Dr. Whiting chose not to meet with President Thames.
On August 30, 2002, President Thames wrote to Dr. Whiting to inform
her that he would not recommend her to the USM Board of Trustees
for tenure or promotion. That letter further gave notice that Dr.
Whiting’s employment at USM would not be renewed after the academic
year ending May 2003.
Dr. Whiting appealed to the Board of Trustees on September 16,
2002. In forwarding her request to the Board, the Commissioner of
Education recommended that the Board decline to consider the
appeal. The Board did so unanimously, because Dr. Whiting had
already filed suit, and notified Dr. Whiting of its decision by
letter to her attorney on November 21, 2002.
PROCEDURAL HISTORY
On August 6, 2002, Dr. Whiting filed the instant suit in the
Circuit Court of Forrest County, Mississippi. Dr. Whiting
complained of violations of her constitutional rights, as protected
by section 1983 of the Civil Rights Act, claiming deprivation of
substantive and procedural due process, and of rights guarded by
7
the Equal Protection clause and the First Amendment.2 She also
raised breach of contract and other claims under state law. She
sought punitive damages, injunctive relief, and any other relief,
including attorneys’ fees, to which § 1983 entitled her.
Defendants timely removed to federal court, and moved for
summary judgment on September 13, 2004. The district court granted
the motion as to all federal claims, remanding the remaining state-
law claims to state court. Dr. Whiting appeals both the award of
partial summary judgement and the remand of the state-law claims.
STANDARD OF REVIEW
This court reviews the district court’s summary judgment
ruling de novo. Hanks v. Transcon. Gas Pipe Line Corp., 953 F.2d
996, 997 (5th Cir. 1992). Summary judgment is appropriate where the
record shows “that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Facts and inferences reasonably drawn from
those facts should be taken in the light most favorable to the non-
moving party. Eastman Kodak Co. v. Image Technical Servs., Inc.,
504 U.S. 451, 456 (1992); Huckabay v. Moore, 142 F.3d 233, 238 (5th
2
42 U.S.C. § 1983 allows suit against any person who “who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.”
8
Cir. 1998). Where the non-moving party fails to establish “the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial,” no
genuine issue of material fact can exist. Celotex, 477 U.S. at 322-
3.
Where a case is before the court under federal question
jurisdiction, pendent-claim jurisdiction over state law claims
exists where there is a “common nucleus of operative fact.” United
Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). While
the federal courts have power to hear cases in such circumstances,
they may exercise discretion over whether or not to exert that
power. Id. at 726. Consequently, this court reviews the district
court’s remand of the state law claims for abuse of discretion.
DR. WHITING’S § 1983 CLAIMS
Dr. Whiting asserts due process, equal protection, and First
Amendment claims through 42 U.S.C. § 1983. As she fails in each
instance to establish a genuine issue of material fact on various
elements of these claims, the district court properly granted
summary judgment on all of her 42 U.S.C. § 1983 claims.
A. Due Process Claims
“The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment’s
protection of liberty and property.” Bd. of Regents of State Colls.
9
v. Roth, 408 U.S. 564, 566-7 (1972). Similarly, substantive due
process offers protection to an individual only if that person has
either a “constitutionally protected property interest,” Regents of
the Univ. of Mich. v. Ewing, 474 U.S. 214, 222 (1985), or a
similarly protected liberty interest. Kelley v. Johnson, 425 U.S.
238, 244 (1976). To determine whether either procedural or
substantive due process safeguards apply, we must examine the
interest at stake to determine whether it falls within the
Fourteenth Amendment’s protections. Id. at 571.
i. Protected Property Interest
“The Fourteenth Amendment’s procedural protection of property
is a safeguard of the security of interests that a person has
already acquired in specific benefits.” Roth, 408 U.S. at 576. The
person must have a legitimate claim to those benefits, not simply
an abstract need or unilateral desire. Id. To determine if property
rights exist, the court must look to state law. Id. at 578; see
also, Bishop v. Wood, 426 U.S. 341, 344 (1976) (discussing the
issue in the specific context of employment law).
Mississippi law is clear that neither state legislation nor
state regulations create a legitimate expectation of continued
employment for a non-tenured faculty member:
Section 37-101-15(f) [Miss. Code Ann.]...empowers the
Board of Trustees to terminate employment contracts at
any time for malfeasance, inefficiency or contumacious
conduct, but does not create a legitimate expectation of
continued employment for a non-tenured employee.
10
Just as there is no protected interest which arises from
Mississippi statutes, there is none which arises from
state regulations.
Nor does the written tenure policy of MVSU create or
confer an expectation of continued employment.
Wicks v. Miss. Valley State Univ., 536 So.2d 20, 23 (Miss. 1980)
(internal citations omitted). Furthermore, the Mississippi Supreme
Court has held that positive annual reviews do not serve to
generate a property interest in tenure. Id. at 24 (citing Staheli
v. Univ. of Miss., 854 F.2d, 121, 126 (5th Cir. 1988)).
Dr. Whiting argues, however, that the tenure procedures in the
handbook state that if, in her annual evaluations and third year
review, she meets or exceeds the criteria used for evaluation, then
“she is to be tenured.” Appellant’s Brief at 21. This flat
guarantee, she asserts, is sufficient to create a property
interest. Language in the Faculty Handbook, however, consistently
reiterates that promotion and tenure are not guaranteed, even by
positive performance reviews: the Handbook states, for example,
“[p]romotion in academic rank is not guaranteed by contracted
employment or earned solely by the duration of employment” and
“[t]he privilege of tenure is not guaranteed by tenure-track
appointment, by prior promotion in academic rank, or by duration of
employment.” Further, as the district court noted: “the same
faculty handbook reiterates that, notwithstanding the procedures,
tenure is awarded at the discretion of the board of trustees upon
nomination by the president.” Given such language and existing
state law precedent, we cannot construe an expectation of continued
11
employment sufficient to generate a protected property interest.
Since Dr. Whiting’s interest in her continued employment does
not make for a viable due process claim, she may only claim a due
process violation if she has some other property interest in a
benefit afforded by her current contract with the state university.
A mere breach of contract will not suffice for an action under §
1983 without a violation of due process rights. Bishop, 426 U.S. at
349-350. While a plaintiff may have an action in state court for
damages for breach of contract, he may not sue under § 1983 unless
his constitutional rights have in some way been denied or his
exercise of those rights penalized in some way. Id.
Dr. Whiting argues that she has been deprived of the property
interest arising from her contractual right to the promotion and
tenure procedures laid out in the handbook. Again, to determine if
property rights exist, the court must look to state law.
Mississippi courts have held that contract rights constitute
enforceable property rights. Univ. of Miss. Med. Ctr. v. Hughes,
765 So.2d 528, 536 (Miss. 2000) (citing Wicks, 536 So.2d at 23
(Miss. 1988)). “[I]t is federal constitutional law[, however,]
which determines whether that property interest rises to the level
of a constitutionally protected interest.” Hughes, 765 So.2d at
536. Certain contract situations, however, such as a “public
college professor dismissed from an office held under tenure
provisions,” or “staff members dismissed during the terms of their
contracts,” have contractual rights creating “an interest in
12
continued employment that [is] safeguarded by due process.” Bd. of
Regents of State Colleges v. Roth, 408 U.S. 564, 566-7 (1972)
(citing respectively, Slochower v. Bd. of Education, 350 U.S. 551
(1956), and Wieman v. Updegraff, 344 U.S. 183 (1952)).
Mississippi courts have held that employee manuals become part
of the employment contract, creating contract rights to which
employers may be held, such as Dr. Whiting’s right to the
procedures outlined in the handbooks. Robinson v. Bd. of Trustees
of E. Cent. Junior Coll., 477 So.2d 1352, 1353 (Miss.1985); see
also, Bobbitt v. The Orchard Dev. Co., 603 So.2d 356, 361 (Miss.
1992). The 5th Circuit has held that where a property right to
procedural protections existed under state law, those procedural
guarantees constituted a property interest protected under due
process. Samuel v. Holmes, 138 F.3d 173, 177 (1998) (analyzing a
non-tenured employee’s claim where a Louisiana statute directed
school districts to promulgate policies for dismissal of such
employees; claimant had property interest in procedural
guarantees). However, even if Dr. Whiting’s contractual rights are
sufficient to constitute a property interest warranting due process
protection, it is not clear that she has adequately alleged any
sort of deprivation. Indeed, reviewing the history of her tenure
application suggests that she has been afforded the processes
guaranteed her.
Potential deficits arise in three areas. First, Dr. Whiting
alleges that “[s]he [was] entitled to a presidential decision by
13
May 1 [of 2002, the end of the academic year in which she applied
for tenure]” but that the President did not reach a decision until
late August 2002. The Faculty Handbook, however, states
“Presidential decisions are normally communicated to affected
parties by May 1.” The word “normally” suggests that there may be
times at which circumstances mandate a different date may apply: in
this case, President Thames did not assume office until May 1,
2002; furthermore, the provost’s review was not itself completed
until May 17, 2002.
Second, Dr. Whiting argues that the policies laid out in the
Faculty Handbook create an “automatic” process, guaranteeing tenure
to one who meets or exceeds the criteria applied during annual and
third-year reviews. Because the handbook’s procedures are
incorporated into her contract, her contract rights warrant due
process protection, and she has met or exceeded the criteria, Dr.
Whiting argues she is therefore contractually guaranteed tenure.
This argument fails for reasons already discussed supra: the
language in the Faculty Handbook emphasizes that the ultimate
decision for tenure lies in the Board’s hands, and that positive
evaluations do not guarantee a grant of tenure.
Third, Dr. Whiting argues that the tenure and promotion
procedures create a de facto tenure program such that she has a
protected interest in her continued employment. She relies on Perry
v. Sindermann, in which the Supreme Court held that “[a]
teacher...who has held his position for a number of years, might be
14
able to show from the circumstances of this service--and from other
relevant facts--that he has a legitimate claim of entitlement to
job tenure” such as would support a due process claim, even though
the state college at which he was employed had no formal tenure
program. 408 U.S. 593, 602 (1972). Dr. Whiting’s case, however, is
distinguishable from the facts of Perry: USM clearly has a formal
tenure process, and as discussed above, emphasizes that the final
decision on tenure remains at the discretion of the Board of
Trustees, notwithstanding the results of annual and third-year
evaluations. Thus her argument arrives at the same result as above:
where a tenure policy exists, non-tenured university employees
under Mississippi law do not have a property interest in their
continued employment that warrants protection under the due process
clause.
Dr. Whiting therefore fails to establish a genuine question of
material fact as to whether she has been deprived of any property
interest. Accordingly, her due process clause claims, both
substantive and procedural, fail insofar as they are based on
deprivation of a property interest.
ii. The Protected Liberty Interest Claim
Protected liberty interests include the freedom to work and
earn a living. Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 577 (1972). “There [may] be cases in which a State refused to
re-employ a person under such circumstances that interests in
15
liberty would be implicated.” Id., 573. To determine if a public
employee has been deprived of a protected liberty interest, this
court must find that he was either:
terminated for a reason which was (i) false, (ii)
publicized, and (iii) stigmatizing to his standing or
reputation in his community or [] terminated for a reason
that was (i) false and (ii) had a stigmatizing effect
such that (iii) he was denied other employment
opportunities as a result.
Cabrol v. Town of Youngsville, 106 F.3d 101, 107 (5th Cir. 1997)
(citing Bd. of Regents of State Colls., 408 U.S. at 564; Codd v.
Velger, 429 U.S. 624, 627, 628, (1977) (per curiam); Moore v. Miss.
Valley State Univ., 871 F.2d 545, 549 (5th Cir. 1989); Wells v.
Hico I.S.D., 736 F.2d 243, 256-57 (5th Cir.1984).
The district court found that Dr. Whiting had been accused of
academic fraud; the veracity of that accusation is central to this
suit. Neither party disputes that such an accusation would have a
stigmatizing effect for a university professor.
Dr. Whiting alleged that she had lost job opportunities due to
the denial of tenure, but, as the district court noted, did not
(and does not) allege that she lost the opportunities because of
the false and or stigmatizing information contained in her file. As
we have stated before, “[w]hile it is generally understood that the
loss of a job can be stigmatizing in itself, the law requires more
to find a liberty deprivation.” Cabrol, 106 F.3d at 107 (citing
Wells, 736 F.2d at 258).
Dr. Whiting does argue that she has suffered a reputational
loss within her community; viz., USM. The question is whether she
16
has raised a genuine question of material fact as to whether the
accusations were publicized. To avoid summary judgement based on
appellant’s argument, Dr. Whiting must show that “‘the governmental
agency has made or is likely to make the...stigmatizing charges
public “in any official or intentional manner, other than in
connection with the defense of [the related legal] action.”’” Wells
v. Hico I.S.D., 736 F.2d 243, 255 (5th Cir. 1984) (quoting Ortwein
v. Mackey, 511 F.2d 696, 699 (5th Cir. 1975)). This court has
previously held that
the mere presence of defamatory information in
confidential personnel files does not amount to a
violation of one's liberty rights. See Walker v.
Alexander, 569 F.2d 291, 294 (5th Cir.1978); Ortwein v.
Mackey, 511 F.2d 696, 699 (5th Cir.1975); Sims v. Fox,
505 F.2d 857, 864 (5th Cir.1974) (en banc), cert. denied,
421 U.S. 1011(1975). However, where the information
contained in the allegedly confidential files is clearly
false, and there is a possibility that the information
will not be kept confidential, we have held that an
evidentiary hearing is required to determine the issues
of confidentiality and the potential prejudice to the
plaintiff's standing in the community and to his
employment opportunities. Swilley v. Alexander, 629 F.2d
1018, 1022 (5th Cir. 1980).
Burris v. Willis Indep. Sch. Dist., Inc., 713 F.2d 1087, 1092 (5th
Cir. 1983).
Dr. Whiting claims that adequate publication had occurred via
preparation of transcripts and cites the record in stating that
Defendants concede that at least 30 people, all of whom were
participants in the tenure and promotion process, heard the
allegation during the tenure and promotion process. She also argues
that no evidence has been offered to suggest that those thirty
17
people were in any way precluded from discussing the accusation.
Furthermore, she argues, the information had been placed in her
file, leaving it accessible to other potential employers, and the
information “spread by Dana Thames through the Department, the
College, and the University.” In her deposition, however, Dr.
Whiting concedes that although she had discussed the facts of her
suit with people outside of USM, she had no knowledge of whether
defendants had discussed her case with anyone outside of the tenure
and promotion process.
Any distribution of the information regarding the charges
against Dr. Whiting thus seems confined to the setting in which
they were made - the hearings for the tenure process - and to Dr.
Whiting’s personnel file. Dr. Whiting does not point to any
concrete manner in which defendants have published or will publish,
in an official or intentional manner, the alleged accusations
outside of the various tenure committees. Cf., Burris, 713 F.2d
1087, 1092-3 (5th Cir. 1983). Furthermore, in her deposition Dr.
Whiting denied any knowledge that the defendants had disseminated
the charges against her outside of the tenure process. Dr. Whiting
therefore has not created a material question of fact as to whether
the defendants acted in any official or intentional manner to
publicize the alleged accusations regarding academic fraud.
Dr. Whiting thus does not meet the requirements that warrant
finding deprivation of a liberty interest. Since she cannot assert
that claim, nor claim deprivation of a property interest, the
18
District Court correctly granted summary judgment against her on
her due process claims.
B. The Equal Protection “Class of One” Claim
Under the standard set out in Vill. of Willowbrook v. Olech,
528 U.S. 562 (2000), for a “class of one” claim to withstand
summary judgment, Dr. Whiting must have established genuine
questions of material fact as to whether 1) “she was intentionally
treated differently from others similarly situated” in the tenure
process and 2) if different standards for tenure were applied,
“that there [was] no rational basis for the difference in
treatment.”3 Id. at 564.
In support of her claim, Dr. Whiting reviewed the CVs of other
professors who had traversed the process and received tenure at
USM. She argues that her dossier documents a far greater array of
accomplishments than possessed by others who had received tenure.
All but two of these professors, some of whom belonged to other
departments of the university, had gone through the tenure process
at different times, were evaluated by different committees, and
sought different positions than Dr. Whiting. Of the remaining two,
one came from a different department, and the other worked in a
different area of teaching and research. Dr. Whiting does not
3
Rational basis scrutiny is used because Dr. Whiting does not
contend that she is a member of a suspect or protected class.
Delahoussaye v. City of New Iberia, 937 F.2d 144, 149 (5th Cir.
1991).
19
contest that both she and other tenure applicants are evaluated
under the three handbook criteria of teaching, research, and
service. Instead, she argues that those individual criteria were
applied differently to her such that she had to meet a different
set of requirements.
To evaluate her arguments, we must first determine whether or
not Dr. Whiting, in her CV review, trawled a pool of similarly
situated individuals. She argues that acceptable breadth of
comparison is wide, encompassing all faculty at the university who
apply for tenure at USM at any time, as all are subject to the same
procedures and criteria for tenure. Appellees, by contrast, argue
that applicants who underwent tenure evaluation at a different
time, in a different field of expertise, are not thought of as
similarly situated to Dr. Whiting given the wide-ranging
differences in what might constitute, for example, consistently
high quality research within different disciplines or at different
points in USM’s history. The argument seems to narrow the field too
finely, however.
Precedent from this court suggests that at somewhat broader
scope is more appropriate. See, e.g., Levi v. Univ. of Tex. at San
Antonio, 840 F.2d 277, 280 (5th Cir. 1988) (in which the court
accepts without argument that two professors applying for tenure in
the same “division” at the same time were similarly situated when
one taught sociology and one psychology). Even accepting this
standard as setting the breadth of comparison, Dr. Whiting compares
20
herself to at least one other person in her department, who applied
for tenure at the same time. Assuming, arguendo, that Dr. Whiting
has met her burden for establishing different treatment of
similarly situated individuals, she must also have shown that there
was no rational basis for the decision to deny tenure.
To withstand a motion for summary judgment, however, Dr.
Whiting must have established that a genuine issue of material fact
exists as to whether any rational basis could exist for the
government’s action. See, Celotex Corp. v. Catrett, 477 U.S. 317,
322-3 (1986) (establishing standard for non-moving party in summary
judgment motion); Bd. of Trustees of the Univ. of Alabama v.
Garrett, 531 U.S. 356, 367 (2001) (“the burden is upon the
challenging party to negative ‘“any reasonably conceivable state of
facts that could provide a rational basis for the classification.”’
(quoting Heller v. Doe, 509 U.S. 312, 320 (1993), in turn quoting
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)); see also,
Levi, 840 F.2d at 280 (“the rational-basis test generally requires
only that the relation to the state's purpose be ‘at least
debatable’”). In applying this test to equal protection claims
regarding tenure decisions, this court has held that
[the test] does not permit a judge or jury simply to
second-guess University officials' academic judgment
concerning a tenure decision...To the extent a decision
concerning a teacher's or student's academic performance
requires “an expert evaluation of cumulative
information,” it lends itself poorly to judicial review.
Levi, 840 F.2d at 280 (internal citations omitted).
In Levi, the plaintiff alleged an equal protection violation
21
where undue emphasis had been placed on his tendency to grade too
leniently, a focus not used in evaluating another professor for
tenure. Id. Plaintiff first challenged the rationality of the
grounds on which the university based his denial of tenure. He
alleged a number of irrational grounds for this discrepancy in
treatment, and asserted the inference that the university had given
out rational grounds for his dismissal as “a pretext for a decision
actually taken out of irrational ill-will”. Id. at 281.
Nonetheless, the court found that in each case the university
proffered a debatably rational justification. Id. In these
circumstances, this court held that the plaintiff had failed to
show that the university’s behavior was irrational, even where such
behavior may have appeared unwise. Accordingly, the court granted
a motion for directed verdict against the plaintiff, noting that
such decisions “call[] for the exercise of professional judgment,
and a reasonable jury could not find that the University officials
failed to exercise that judgment or ventured ‘beyond the pale of
reasoned academic decision-making.’” Id.
The instant case is similar. Dr. Whiting is alleging that
different standards were applied to evaluate her under the
“research” portion of the tenure criteria. She further alleges that
the rational reasons put forth by the defendants are no more than
pretext for the underlying, irrational reason for her denial of
tenure, i.e., President Thames’s purported bias against her as a
result of the ill will his daughter, Dr. Thames, bore her. As in
22
Dr. Levi’s case, however, “[a]ll of these decisions were at least
debatable, and none reveals a failure to exercise professional
judgment.” Id. at 281. Dr. Whiting has thus failed to meet her
burden of proof on that standard when under summary judgment
review.
C. The First Amendment Retaliation Claim
Finally, Dr. Whiting alleges that she has been denied tenure
in retaliation for an alleged ruling against Dr. Thames while
sitting on a panel reviewing student grievances against
administrative actions.4 Succeeding on a First Amendment
retaliation claim requires that Dr. Whiting show
(1) she suffered an ‘adverse employment decision’; (2)
her speech involved ‘a matter of public concern’; (3) her
‘interest in commenting on matters of public
concern...outweigh[s] the Defendant's interest in
promoting efficiency’; and (4) her speech motivated the
adverse employment decision [i.e., a causal connection].
Beattie v. Madison County Sch. Dist., 254 F.3d 595, 601
(5th Cir. 2001) (citing Harris v. Victoria Indep. Sch.
Dist., 168 F.3d 216, 220 (5th Cir.).
Defendants argue that Dr. Whiting has not offered any evidence
that her conduct was a motivating factor in her discharge. See
Beattie, 254 F.3d at 605 (such a failure resulted in a motion for
summary judgment against the plaintiffs). The question focuses on
whether a causal connection existed between her conduct and her
4
In her Reply Brief, Dr. Whiting also raises a First Amendment
claim that she suffered an adverse employment decision because of
her association with other professors in the Department for whom
Dr. Thames cared little. As the argument was not raised until her
reply brief, it is not considered here.
23
denial of tenure.
In Beattie, the plaintiff claimed she had been fired because
she opposed the reelection of the current superintendent. At
various times, she was told by her school’s principal that she
should refrain from expressing her opinions on the matter. Shortly
thereafter, the principal recommended to the superintendent that
she be removed from her job. The superintendent presented the
recommendation to the school board, which had previously discussed
complaints regarding plaintiff’s behavior with parents, teachers,
and students. The board voted unanimously to remove her, and all
stated in their affidavits that they had no knowledge of
plaintiff’s political activities or misconduct by defendants. Id.
at 599-600. Beattie asserted, without further evidence, that it was
her support of the opposing candidate for superintendent that lead
the principal and the incumbent to recommend her removal to the
school board. She lost on summary judgment nonetheless: because
neither of the people involved in the recommendation
cause[d] the adverse employment action, they cannot be
liable under § 1983, no matter how unconstitutional their
motives. Moreover, even if the board adopted their
recommendation, that recommendation exhibited no
unconstitutional motive on its face. Further, the
evidence suggests that the board fired Beattie for
independent reasons, and Beattie offers nothing but her
own beliefs to the contrary.
Id. at 605.
Dr. Whiting’s case is similar. Dr. Whiting alleges that after
she spoke out against Dr. Thames’s behavior, Dr. Thames retaliated
by injecting scurrilous accusations of academic fraud into Dr.
24
Whiting’s tenure and promotion evaluation. Unlike Ms. Beattie,
however, Dr. Whiting denied in her deposition that she “at any time
hear[d] any of [her] supervisors at USM tell [her she] could not
speak about certain issues,” and stated that she did not believe
that she had been denied tenure based on any statements she had
made.
The causal link alleged is twofold: first, that the “poisoned”
dossier made its way through the tenure and promotion process,
allegedly leaving otherwise ill-founded doubts in its wake as to
Dr. Whiting’s suitability. That same dossier, it should be noted,
contained Dr. Whiting’s various rebuttals to Dr. Thames’s alleged
claims, and expressed concerns over her qualifications in terms of
the “service” criteria as well. Furthermore, the dossier had been
evaluated by around 30 people by the time it reached President
Thames, and subsets of that group had come to differing conclusions
as to whether Dr. Whiting merited tenure. The record suggests,
then, that the file reaching President Thames contained not just
Dr. Thames’s accusations, but also concerns, praise, and questions
from a substantial number of other people.
Second, Dr. Whiting alleges President Thames’s close
relationship with his daughter, Dr. Thames, left him “biased and
prejudiced” and inclined to go along with his daughter’s alleged
smear campaign. Dr. Whiting offers nothing but her own beliefs as
foundation for this causal chain. President Thames’s affidavit
states that he had not discussed Dr. Whiting’s tenure and promotion
25
application with his daughter or her allies, and that he based his
decision not to award tenure on a careful and independent review of
Dr. Whiting’s dossier.
While Dr. Thames’s accusations may, indeed, have been
retaliatory, Dr. Thames was not responsible for the final decision
to deny tenure. It could be argued that her accusations eventually
influenced President Thames by their very presence in the record,
but Dr. Whiting makes no argument beyond her assertions of belief
that President Thames based his decision on the information
inserted by his daughter, to the exclusion of all other data in the
file. Nor does she offer anything beyond her own beliefs to suggest
that President Thames himself carried an inherent bias against her
due to his close relationship with his daughter. Accordingly Dr.
Whiting has failed to meet the standard necessary for her First
Amendment retaliation claim to survive summary judgment.
REMAND TO STATE COURT
As we here affirm the district court’s grant of summary
judgment as to Dr. Whiting’s constitutional claims under 42 U.S.C.
§ 1983, the only remaining issues in the case are pendent questions
of state law. District courts are given broad discretion to remand
removed cases with pendent state law claims where retaining
jurisdiction would not be appropriate. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 357 (1988) (noting that this allows the
district court to best serve the principles of “economy,
26
convenience, fairness, and comity which underlie the pendent
jurisdiction doctrine.”). Dr. Whiting states her concerns regarding
the possible prejudice and hardship that such a transfer will place
upon her. Nothing, however, suggests that the district court’s
decision to remand to state court constitutes so great a wrong as
to constitute abuse of discretion. Accordingly, we affirm the
district court’s order remanding Dr. Whiting’s pendent state law
claims to state court.
For all the reasons stated above, the judgment of the district
court is AFFIRMED.
27