KITCHENS, Justice, for the Court:
¶ 1. Melissa Whiting appeals the Circuit Court of Forrest County's grant of summary judgment dismissing all claims against the Mississippi Board of Trustees of Institutions of Higher Learning, the University of Southern Mississippi, Dr. Shelby Thames, Dr. Dana Thames, and Dr. Carl Martray. For the reasons that follow, we affirm.
¶ 2. The following facts are taken verbatim from the Federal Court of Appeals' decision in Whiting v. University of Southern Mississippi, 451 F.3d 339, 341-43 (5th Cir.2006).
¶ 3. On August 6, 2002, Whiting filed her complaint in the Forrest County Circuit Court, complaining of the state law claims discussed below, and federal claims alleging deprivation of substantive and procedural due process pursuant to Section 1983 of the Civil Rights Act of 1964. The defendants filed their notice of removal to federal court on August 19, 2002. The United States District Court for the Southern District of Mississippi granted summary judgment to the defendants on all federal claims, and remanded the state claims to the Circuit Court of Forrest County.
¶ 4. Dr. Whiting appealed that decision to the Fifth Circuit Court of Appeals, which affirmed the district court. Whiting, 451 F.3d 339 (5th Cir.2006). In that decision, the Court of Appeals ruled that, pursuant to Mississippi law, the subjective expectation of the grant of tenure did not create a protected property interest, and, as such, Dr. Whiting's federal claims regarding both procedural and substantive due process failed insofar as they were based on deprivation of a property interest. Id. at 346. The federal appeals court further found that Dr. Whiting had failed to meet her burden of production with respect to a deprivation of a liberty interest. Id. at 348. That court also affirmed the district court's dismissal of Dr. Whiting's claims regarding discrimination as a "class of one" and her claim that she was denied tenure in retaliation for her exercise of her First Amendment rights. Id. at 350. Ruling that the only questions left were those of state law, the federal appeals court affirmed the district court's order remanding the case to the Circuit Court of Forrest County. Id. at 352.
¶ 5. Upon remand, the defendants moved for summary judgment on the remaining state law claims, which the circuit court granted. In its Opinion and Order, the trial court, noting a lack of clarity with respect to the claims in the complaint submitted by Dr. Whiting, ruled first that any claim related to breach of contract was precluded as a matter of Mississippi law, citing in a footnote the Fifth Circuit's holding that there is no legitimate expectation of continued employment on the part of a nontenured faculty member. See Whiting, 451 F.3d at 344-345. The court further ruled that Dr. Whiting's claims relating to a deprivation or violation of her right to due process were subject to the Mississippi Tort Claims Act. The court found that, in filing suit prior to a final decision by the Board of Trustees, Dr. Whiting had failed to exhaust all administrative remedies.
¶ 6. In addition, the trial court ruled that guarantees of due process under the Mississippi Constitution depend on the showing of a protected property interest. The court found that Dr. Whiting had failed to establish an issue of material fact regarding the deprivation of any property interest. The court ruled that summary
¶ 7. Dr. Whiting filed her motion for reconsideration on September 25, 2008, which the trial court denied on October 6, 2009. Dr. Whiting timely perfected this appeal from the trial court's grant of summary judgment to the defendants.
¶ 8. A trial court's denial of a motion for reconsideration under Rule 59 or Rule 60 of the Mississippi Rules of Civil Procedure is reviewed for an abuse of discretion. City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 66 (Miss.2005); Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984).
¶ 9. A trial court's grant of summary judgment is reviewed de novo. Hubbard v. Wansley, 954 So.2d 951, 956 (Miss. 2007). Summary judgment will be granted only when there is no genuine issue of material fact to be decided and the moving party is therefore entitled to judgment as a matter of law. Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 432-33 (Miss. 1988). "A material fact is one which resolves any `of the issues, properly raised by the parties.'" Strantz ex rel. Minga v. Pinion, 652 So.2d 738, 741 (Miss.1995) (quoting Stegall v. WTWV, Inc., 609 So.2d 348, 351 (Miss.1992)). To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim. Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). Further, he must present more than a mere scintilla of colorable evidence to support his claims. Luvene v. Waldrup, 903 So.2d 745, 748 (Miss.2005). Additionally, the party opposing summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). The evidence must be sufficient that a fair-minded jury could return a favorable verdict. Id. The mere allegation of material fact is insufficient to generate a triable issue of fact and avoid summary judgment. Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346, 1356 (Miss.1990). Specifically, "the plaintiff may not rely solely upon the unsworn allegations in the pleadings or `arguments and assertions in briefs or legal memoranda.'" Id. (quoting Magee v. Transcon. Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss. 1989)). In summary, if a genuine issue of material fact is found, the trial court shall deny summary judgment; otherwise, the trial court shall grant the motion where the movant is entitled to judgment as a matter of law. M.R.C.P. 56(e); Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000) (citing Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983)).
¶ 10. Dr. Whiting's argument may be summarized as follows: First, her claim is based upon a breach of contract theory and therefore is not procedurally barred by the requirement of the MTCA that all administrative remedies must be exhausted. Second, she argues that the faculty handbook, taken as an integral part of her contract with the Board, guarantees procedural and substantive due process with respect to her application for tenure. She argues further that the defendants — specifically Dr. Shelby Thames, then president of the university, and Dr. Dana Thames — acted in bad faith, and were motivated by bias or animus against her, in sabotaging her qualifications, refusing to recommend tenure, and refusing to rule on her tenure application once it had reached the president's office. She argues that her claim is not based on an expectation of future employment but upon a contractually
¶ 11. The defendants contend in turn that the trial court did not err in ruling that the MTCA erected a procedural bar to Dr. Whiting's filing suit prior to an appealable ruling from the Board. Further, they argue that injunctive relief is not appropriate because Dr. Whiting cannot show any imminent threat of irreparable harm that is not otherwise addressed and is without an adequate legal remedy.
¶ 12. Briefly restated for clarity, Dr. Whiting concedes that she had no legitimate expectation of tenure as a result of her prior tenure-track employment contracts, but argues instead that the actions of then-President Thames and the Board in refusing to rule timely on her application, and by implication, grant her tenure, constituted a violation of her rights to procedural and substantive due process. She further argues that the Circuit Court of Forrest County erred in ruling that the MTCA's requirement that all administrative remedies be exhausted prior to her bringing suit against the State or its agency meant that her claim was procedurally barred. Specifically, she alleges that the MTCA does not apply to claims based upon an alleged breach of contract.
¶ 13. To the extent that Dr. Whiting's claims are based purely upon a breach of contract theory, we find that, as a matter of law, that no contract was formed between Dr. Whiting and the Board with respect to an offer of tenure. Further, the Fifth Circuit Court of Appeals's ruling that Dr. Whiting had no protected property interest that entitled her to due process considerations is applicable here, as the analysis of due process considerations under the Mississippi Constitution is coextensive with federal law on this point.
¶ 14. It is, of course, a basic principle of the law of contracts that a contract is not formed between the parties absent the essential elements of offer, acceptance, and consideration. Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1029 n. 3 (Miss.2000) (citing Putt v. City of Corinth, 579 So.2d 534, 538 (Miss.1991)). Insofar as Dr. Whiting's claim relates to a guarantee of tenure, that argument is without merit in that the Board, the only entity capable of forming a valid employment contract with her, never made to Dr. Whiting an offer of a tenured position. It is settled law in this state that the subjective expectation of tenure does not create a property interest that is guaranteed by the right to substantive and procedural due process. Wicks v. Miss. Valley State Univ., 536 So.2d 20 (Miss.1988).
¶ 15. At the core, Dr. Whiting's argument, to the extent that it makes out a specific claim for relief, is that her contract with the Board, as memorialized in the handbook, guaranteed a fair and impartial hearing with respect to her tenure application, and the defendants denied her that opportunity. While she attempts to characterize these claims as breach of contract, a fair reading of the facts of this case and the manner in which Dr. Whiting lays out her argument establish that if there were a claim to be made, it would be for tortious breach of contract and tortious interference with contract. As such, the claims made against the Board or the university are governed by the provisions of the MTCA.
¶ 16. The MTCA provides, in relevant part, that the state, and by extension the Board, is
Miss.Code Ann. § 11-46-3(1) (Rev.2002). We have interpreted the phrase "any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract" to mean that the MTCA covers both tortious breaches of contract and breaches of implied terms and warranties of a contract. City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 710 (Miss.2005). The MTCA, of course, provides a limited waiver of immunity for claims arising from tortious acts of governmental agencies and their employees. Miss.Code Ann. § 11-46-5(1) (Rev.2002). Recovery is limited by statute to $500,000. Miss.Code Ann. 11-46-15(1)(c) (Rev.2002).
¶ 17. The MTCA further provides that notice of a claim must be brought only after all administrative remedies have been exhausted. Miss.Code Ann. § 11-46-11 (Rev.2002). This Court previously has held that, with respect to a contract for employment with an entity governed by the Board of Trustees of State Institutions of Higher Learning, failure to complete the internal grievance process for an alleged wrongful termination does not satisfy the requirement that administrative appeals be exhausted for purposes of the MTCA. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004).
¶ 18. The Mississippi Constitution provides that responsibility for the management and control of the institutions of higher learning of this state is vested in the Board of Trustees of State Institutions of Higher Learning ("the Board"). Miss. Const. art. 8, § 213A. That section provides, in relevant part:
Miss. Const. art. 8, § 213A. In addition, Mississippi Code Section 37-101-15(f) (Rev.2007) states, in relevant part, "[t]he Board shall have the power and authority to ... contract with all deans, professors, and other members of the teaching staff... for a term of not exceeding four (4) years."
¶ 19. A valid employment contract with the University of Southern Mississippi cannot exist unless and until the Board of Trustees of State Institutions of Higher Learning approves a nomination by the university's president. As a matter of statute, this is the only valid avenue for the creation of a valid contract for employment. Bruner v. Univ. of S. Miss., 501 So.2d 1113, 1115 (Miss.1987). All contracts, therefore, entered into with instructors or professors at the university properly are construed as contractual agreements with the Board and not with the several institutions it supervises or their respective employees. The university and its officers, notwithstanding the fact that they
¶ 20. With respect to contracts of employment, contractual obligations may arise from, and the provisions of a contract may be modified by, employee manuals. Bobbitt v. The Orchard, Ltd., 603 So.2d 356 (Miss.1992). The Board, in general, outlines general policies regarding faculty promotion and tenure that are supplemented by more specific policies at the university level. To determine what rights to procedural due process arose as a result of Dr. Whiting's contractual relations with the Board, it is necessary to examine the university's provisions regarding the grant of tenure and the application process as outlined in the handbook that was provided to Dr. Whiting. The substantive policy of the university is outlined in Chapter X of the handbook, and the procedure is outlined in Chapter XI, entitled "Faculty Personnel Actions: Procedure and Contractual Due Process."
¶ 21. The faculty handbook that is part of the record on appeal defines contractual due process as "the sum total of the procedural guarantees, explicit and implicit, afforded by a contracting employer to a contracting employee for the regulation and enforcement of the substantive terms of employment." These guarantees refer, with respect to the grant or denial of tenure, to the internal review process that culminates in a recommendation by the president to the Board and the candidate's ability to appeal an adverse decision.
¶ 22. Speaking directly to the substantive rights regarding a tenure-track position, the handbook defines academic tenure as "a qualified expectation of continuing employment." It further states: "... academic tenure is a privilege granted on a basis of professional promise and value within the structure of goals and objectives pursued by academic units of appointment by schools, divisions, and colleges of which academic units of appointment might be component parts; by the University; and by the Board of Trustees." The handbook also provides that the process by which application for tenure is reviewed resides primarily at the departmental level. A tenured faculty member may be removed only for cause, and the dismissal of a tenured faculty member is subject to its own procedural guarantees. Tenured faculty are "protected against involuntary suspension or termination of employment except upon stipulated grounds and in accordance with specified procedures." In summary, once a faculty member has been granted tenure, she has a legitimate qualified expectation of continued employment, the statutory bar to appointments longer than four years' length notwithstanding.
¶ 23. According to the handbook, the president is delegated exclusive authority over all personnel nominations and recommendations to the Board, which in turn retains sole authority to execute those nominations and recommendations. The president's legal responsibility in this regard is explicitly nondelegable. That nondelegable legal responsibility notwithstanding, the Board Policies and Bylaws, as cited in the handbook, require the "University President to establish institutional bodies and to define and follow contractual due process in all institutional deliberations involving tenure and dismissal."
¶ 24. In the College of Education and Psychology, the application process begins, after the applicant's notice to the departmental
¶ 25. Assuming the dossier is not withdrawn, the dean then will forward the dossier to the University Advisory Committee ("UAC"). The UAC is composed of the chairs of the College Advisory Committees, and serves as an advisory body to the provost of the University, the chief academic officer for the University. One of the functions of the UAC is "to review the merits of faculty members recommended for promotion in rank and for academic tenure, assuring general uniformity of standards within the University, and submitting favorable or unfavorable judgments to the Provost." To promote the neutral character of the review process, the handbook provides that members of the University Advisory Committee must recuse themselves from any personnel matter concerning a faculty member of the college they represent. Further de novo review is conducted by the provost (the chief academic officer for the University), who then transmits his recommendation to the president. The president then is responsible for a further level of de novo review prior to submitting his recommendations to the Board. To summarize, five levels of independent and de novo review occur prior to the application to the Board of a candidate for tenure, and the Board has exclusive authority to grant tenure and form contracts for employment.
¶ 26. The handbook provides a separate vehicle for appeals by aggrieved personnel. A faculty member may appeal any recommendations or other personnel actions, including termination and denials of tenure, at any point and from any body making the recommendation, to the person or committee having oversight of the deciding body, as outlined above. More specifically, an aggrieved faculty member may appeal any action directly to the Board of Trustees. The handbook, citing the Board Policies and Bylaws, states that upon receiving appeals, the Board reviews all relevant documentation and "determines 1) if established substantive and procedural employment policies and procedures were followed within the University, and 2) if the personnel decision was arbitrary and capricious."
¶ 27. Here, Dr. Whiting does not dispute that she did not wait for a final decision from the Board regarding her tenure application, and neither does she dispute that the president has substantial discretion over final recommendations regarding tenure decisions, or that the Board has final discretionary authority over all personnel matters. She alleges merely that the president refused to give her application a fair hearing because his familial relationship with her departmental chair biased him against her application. She makes this allegation without any evidentiary support beyond her suspicion as articulated in her deposition and in the
¶ 28. Dr. Whiting consistently overlooks that the tenure review process involves several layers of functionally independent review. At no point during the review process, prior to the provost's recommendation, was there anything that resembled a broad consensus, much less unanimity, among the review committees, even after Dr. Whiting had sent letters attempting to rebut allegations that her research dossier, at that point, was not strong enough to warrant a grant of tenure. Dr. Whiting's failure to meet with the president, which she said was on the advice of her attorney, does nothing to support her contention that she was deprived of a fair hearing. As she cannot show that either President Thames or the Board acted outside their duly-authorized discretion in denying her application for tenure, her contention that they breached an obligation to provide due process to her is without merit.
¶ 29. To the extent that her claims are based on an alleged violation by the Board of her rights to due process as guaranteed by the Mississippi Constitution, this argument also is without merit. It is clear that there is no legitimate expectation of employment for a nontenured faculty member that creates a protected interest. Wicks, 536 So.2d at 23 (Miss. 1988). Written tenure policies do not, of themselves, create or confer an expectation of continued employment. Id. Dr. Whiting, contrary to the explicit statements of the handbook, asserts that the policies as outlined created a legitimate expectation of the grant of tenure. As this argument is in plain conflict with the facts that the grant of tenure is within the sole discretion of the Board and the sole power to transmit recommendations rests with the university president, it is without merit.
¶ 30. Dr. Whiting further attempts to escape her obligation to exhaust her administrative remedies by arguing that injunctive relief is categorically unaffected by the MTCA. Citing Greyhound Welfare Foundation v. Mississippi State University, 736 So.2d 1048 (Miss.1999), she argues that the MTCA does not extend sovereign immunity to claims asking for injunctive relief. That exception does not apply here. Generally, mandatory injunctive relief is applicable only when there is an imminent threat of irreparable harm and there is no adequate remedy at law. Punzo v. Jackson County, 861 So.2d 340, 348 (Miss.2003). Relief should be granted only where it is reasonably practicable. Id. The injunctive relief for which Dr. Whiting is asking is, in essence, for a judicial mandate that the University provide her a tenured position. As it is clear that the procedural guarantees, as crafted by Board and university policy and as outlined in the handbook, do not create an automatic right to tenure, injunctive relief is not appropriate, and this request is without merit.
¶ 31. Dr. Whiting failed to wait for a final decision by the Board regarding approval of her application for tenure prior to filing suit. Her claims based on tortious conduct in general, tortious breach of contract in particular, and breach of an implied contractual term or warranty are foreclosed by her failure to adhere to the requirement of the Mississippi Tort Claims Act that all administrative remedies be exhausted prior to filing suit. Further, Dr. Whiting failed to meet her burden of production in response to the defendants' summary judgment motion to show that there was a genuine issue of material fact
¶ 32.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR.
