Filed: Mar. 12, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-60505 Summary Calendar _ W C GORDEN, Plaintiff-Appellant, versus JACKSON STATE UNIVERSITY; BOARD OF TRUSTEES OF INSTITUTIONS OF HIGHER LEARNING; JAMES E LYONS, SR, Individually and in his official capacity as President of Jackson State University; EVALEE BANKS, Individually and in her official capacity as Vice President of Jackson State University; ALL DEFENDANTS, Defendant-Appellee. _ Appeal from the United States District Court for
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-60505 Summary Calendar _ W C GORDEN, Plaintiff-Appellant, versus JACKSON STATE UNIVERSITY; BOARD OF TRUSTEES OF INSTITUTIONS OF HIGHER LEARNING; JAMES E LYONS, SR, Individually and in his official capacity as President of Jackson State University; EVALEE BANKS, Individually and in her official capacity as Vice President of Jackson State University; ALL DEFENDANTS, Defendant-Appellee. _ Appeal from the United States District Court for t..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-60505
Summary Calendar
_______________________
W C GORDEN,
Plaintiff-Appellant,
versus
JACKSON STATE UNIVERSITY; BOARD OF TRUSTEES OF
INSTITUTIONS OF HIGHER LEARNING; JAMES E LYONS, SR,
Individually and in his official capacity as President of
Jackson State University; EVALEE BANKS, Individually and
in her official capacity as Vice President of Jackson
State University; ALL DEFENDANTS,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:95-CV-89)
_________________________________________________________________
April 18, 1996
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
W.C. Gorden appeals the district court’s grant of summary
judgment dismissing his claims against defendants following his
termination as Athletic Director at Jackson State University and
his assignment to the Department of Health, Physical Education, and
Recreation. For the reasons that follow, which are essentially the
same as those stated by the district court, we AFFIRM.
*
Pursuant to Local Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in Local Rule 47.5.4.
I. BACKGROUND
On July 1, 1994, W.C. Gorden entered into a one-year
written contract with the Board of Trustees of State Institutions
of Higher Learning of the State of Mississippi concerning his
employment at Jackson State University. Prior to entering into
this contract, Gorden had been employed at Jackson State for over
twenty-six years, serving in a variety of positions within the
Health and Physical Education Department and within the
University’s Athletic Administration.
The employment contract signed by Gorden was simple and
straightforward. Page one of the contract provided that Gorden was
to be employed as an “Instructor of Health” and as “Director of
Athletics” within the Department of Health, Physical Education, and
Recreation, and the Department of Athletics Administration. The
term of the contract was for one year, beginning July 1, 1994 and
ending June 30, 1995, at a stated salary. Page two provided that
Gorden would serve as Jackson State’s “Director of Athletics.”
Page three discussed possible sanctions if Gorden committed certain
infractions and also outlined Jackson State’s right to reassign
Gorden. In full, page three provided:
Athletics (NCAA Violations and Change of Duties)
The employee acknowledges that involvement in a
deliberate and serious violation of any law, regulation,
rule, by-law, policy or constitutional provision of the
State of Mississippi, the Board, the NCAA, conference or
any other governing authority may result in suspension
without pay and/or termination of this contract. In
addition, the University reserves the right to assign
duties, to transfer, reassign, or otherwise change the
duties of the Employee during the term of this contract.
2
On December 19, 1994, Evalee Banks, Vice-President of
Jackson State, summoned Gorden into her office and delivered to him
a letter signed by Jackson State President James Lyons. The letter
informed Gorden that effective immediately his employment as
Director of Athletics was terminated, and that he had been detailed
to the Department of Health, Physical Education, and Recreation.1
The letter further provided that Gorden would continue to receive
his current salary until June 30, 1995, at which time his salary
would be adjusted to reflect the salary paid instructors in the
Department of Health, Physical Education, and Recreation.
The local media broadcast and published news of Gorden’s
termination, including statements by Vice-President Banks that
Gorden claims publicly disparaged his management capabilities, his
ability to raise money, his ability to gain support from alumni,
and his ability to enhance the athletic program. The day following
his reassignment, a security officer was posted outside the
Athletic Director’s office and local news crews filmed Gorden as he
removed personal items from the office.
Following his termination as Athletic Director and
assignment to the Department of Health, Physical Education, and
Recreation, Gorden retained counsel and sent a letter to President
Lyons requesting both written reasons for his termination as
1
The letter originally given to Gorden stated that his termination as
Athletic Director was effective January 19, 1995, and that his assignment to the
Department of Health, Physical Education, and Recreation was effective January
20, 1995. That evening, however, Jackson State security personnel delivered a
corrected letter to Gorden’s home in which the dates had been changed to December
19, 1994 and December 20, 1994.
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Athletic Director and a hearing. President Lyons responded by
letter addressed to Gorden’s counsel stating:
Jackson State University chose to exercise its right to
make an administrative change in the Department of
Athletics by reassigning Mr. Gorden from part-time
administration and part-time teaching responsibilities to
full-time teaching responsibilities. . . . The University
reassigned Mr. Gorden’s duties pursuant to his contract,
and did not violate any of his statutory and
constitutional rights.
Thereafter, on January 31, 1995, Gorden filed suit
against Jackson State University, the Board of Trustees of
Institutions of Higher Learning, James E. Lyons, Sr., individually
and in his official capacity, and Evalee Banks, individually and in
her official capacity (defendants). Proceeding under 42 U.S.C. §
1983, Gorden alleged that his termination and reassignment violated
his liberty and property interests protected by the Fifth and
Fourteenth Amendments. Additionally, Gorden asserted state law
claims of wrongful discharge, intentional infliction of emotional
distress, breach of contract, ultra vires termination, as well as
denial of due process under Article 3, Section 14 of the
Mississippi Constitution.
On March 1, 1995, defendants filed a Motion to Dismiss,
or alternatively, for summary judgment, as well as a motion to hold
discovery in abeyance pending a decision on the qualified immunity
defense asserted by President Lyons and Vice-President Banks. The
court granted defendants’ motion to hold discovery in abeyance and
eventually granted summary judgment and dismissed all claims with
prejudice. Gorden timely appeals.
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II. DISCUSSION
A. Standard of Review
We review the district court’s grant of summary judgment
de novo, using the same standard as applied by the district court.
Vera v. Tue, 73 F.3d 604, 607 (5th Cir. 1996). Summary judgment
should be granted if the record discloses “that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Although
all inferences are to be drawn in favor of the nonmovant, “[i]f the
record as a whole could not lead a rational trier of fact to find
for the nonmovant, then there is no genuine issue for trial.”
Vera,
73 F.3d at 607.
B. Constitutional Claims
Gorden contends that the district court erred in
concluding that he did not have a property interest in continued
employment as Athletic Director for the term of the contract, and
in holding that he had failed to present a genuine issue of
material fact as to his liberty interest claim. Gorden argues that
the employment contract is ambiguous, and that he presented
evidence creating a genuine issue of material fact regarding
whether Lyons and Banks made false and defamatory statements
regarding Gorden’s performance as Athletic Director and also
orchestrated his discharge in such a manner as to communicate that
Gorden had been involved in misconduct. We disagree.
The employment contract in question is unambiguous in
that it grants Jackson State the right to “transfer, reassign, or
5
otherwise change the duties” of Gorden during the term of the
contract. See Simmons v. Bank of Mississippi, 593 So. 2d 40, 42-43
(Miss. 1992)(court must determine the meaning of the language used
in the contract, not ascertain some unexpressed intention of the
parties); Cherry v. Anthony, Gibbs, Sage,
501 So. 2d 416, 419
(Miss. 1987)(when construing provisions of a contract, the court
must look to the document as a whole). Based on the contract,
Gorden has failed to establish a constitutionally protected
property interest in serving as Athletic Director for Jackson
State. Board of Regents v. Roth,
408 U.S. 564, 577,
92 S. Ct.
2701, 2709 (1972)(mere expectation does not create protected
property interest). Additionally, even if a property interest
exists, it is undisputed that when Gorden was terminated as
Athletic Director and assigned to the Department of Health,
Physical Education, and Recreation, he continued to receive the
contracted for salary contained in the July 1, 1994 employment
contract and has therefore suffered no compensable damage as a
result of his reassignment. Davis v. Mann,
882 F.2d 967, 973 (5th
Cir. 1989); see Robinson v. Boyer,
825 F.2d 64, 67 (5th Cir. 1987).
The district court did not err in granting summary judgment as to
Gorden’s property interest claim.
Concerning Gorden’s liberty interest claim, the fact that
Gorden continued as an employee with Jackson State following his
termination as Athletic Director negates his liberty interest
claim. As explained in Moore v. Otero, 557 F.2d 435, 438 (5th Cir.
1977):
6
When an employee retains his position even after being
defamed by a public official, the only claim of stigma he
has derives from the injury to his reputation, an
interest that [Paul v. Davis, 424 U.S. 693,
96 S. Ct.
1155 (1976)] reveals does not rise to the level of a
liberty interest. The internal transfer of an employee,
unless it constitutes such a change of status as to be
regarded essentially as a loss of employment, does not
provide the additional loss of a tangible interest
necessary to give rise to a liberty interest meriting
protection under the due process clause of the fourteenth
amendment.
Id. at 438, see Schultea v. Wood,
27 F.3d 1112, 1117-18 (5th Cir.
1994), modified on reh’g en banc,
47 F.3d 1427 (5th Cir. 1995).
The assignment of Gorden as a full-time health instructor did not
amount to “essentially a loss of employment” under Moore. The
district court properly found that Gorden has not been deprived of
a liberty interest protected by the Fourteenth Amendment.
C. State Law Claims
The district court properly granted summary judgment as
to Gorden’s state law claims. The employment contract
unambiguously provides that Jackson State may “transfer, reassign,
or otherwise change the duties” of Gorden during the term of the
contract. The University did not breach Gorden’s employment
contract by removing him as Athletic Director and assigning him, at
the same pay, to the Department of Health, Physical Education, and
Recreation, nor does the University’s conduct give rise to a claim
of wrongful discharge since Gorden was merely assigned to another
position identified by his employment contract within the
University. Additionally, Gorden’s claim of intentional infliction
of emotional distress fails because the University’s assignment of
Gorden pursuant to the contract to full-time teaching without loss
7
of pay was not “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency.” White v.
Walker, 950 F.2d 972, 978 (5th Cir. 1991)(Mississippi law)(citation
omitted). Lastly, Gorden’s due process claim under the Mississippi
Constitution fails for the same reasons Gorden’s Federal
Constitutional claims failed. Walters v. Blackledge,
71 So. 2d
433, 444 (Miss. 1954)(federal “due process” is the same as state
“due process").
D. Discovery
Gorden argues that the district court erred in granting
summary judgment without affording him the benefit of discovery.
Specifically, Gorden contends that there is an issue regarding the
meaning of the employment contract and that to grant summary
judgment without allowing him to depose and examine agents of the
University regarding their understanding of the contract was an
abuse of discretion. We disagree.
The focus of Gorden’s claim centers on the interpretation
of the employment contract between Gorden and the Board of
Trustees. The interpretation of written contracts is a question of
law decided by the court. Hall v. State Farm Fire & Casualty Co.,
937 F.2d 210, 213 (5th Cir. 1991); Holt Oil & Gas Corp. v. Harvey,
801 F.2d 773, 780 (5th Cir. 1986), cert. denied,
481 U.S. 1015,
107
S. Ct. 1892 (1987). We agree with the district court that the
contract is unambiguous in that it grants Jackson State the right
“to assign duties, to transfer, reassign, or otherwise change the
duties of [Gorden] during the term of [the] contract.” Jackson
8
State exercised this right by assigning Gorden to the Department of
Health, Physical Education, and Recreation within the University.
Gorden continued to receive the contracted for salary. Gorden has
“failed to point to any issue of material fact that could preclude
summary judgment.” NGS American, Inc. v. Barnes, 998 F.2d 296, 300
(5th Cir. 1993); see King v. Dogan,
31 F.3d 344, 346 (5th Cir.
1994). The district court did not err in granting summary judgment
prior to discovery.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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