Whiting v. University of Southern Mississippi

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

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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.
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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

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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.

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