TOM S. LEE, District Judge.
From 1991 until his resignation in May 2012, plaintiff Alvin T. Simpson was
Despite having requested and received two extensions of time to respond to the motion, plaintiff failed to timely respond to the motion. He did finally file a response, two weeks beyond the latest deadline established by the court at his request; and he did so without seeking a further extension or leave to file his response out of time. Given these circumstances, defendants have understandably moved to strike plaintiff's response. It is a reasonable request, and the court certainly would be well justified in striking the response. However, since nothing in the response alters this court's view that dismissal is in order, the court will deny the motion to strike.
The allegations of plaintiff's complaint relate to troubles that began in mid 2009, after he reported to an IHL auditor that defendant Doris McGowan, an ASU employee, had forged his signature on a payment authorization to pay $5,000 to ASU employee Doris Gary (resulting in Gary's termination in July 2009 but not McGowan's). Plaintiff alleges that McGowan and her husband began engaging in retaliatory conduct toward him. In October 2009, plaintiff made an official complaint to ASU about the McGowans' conduct; but ASU took no action in response to his complaint and therefore, on October 14, 2009, he reported the McGowans' "criminal activity" to the Attorney General's office.
At some point subsequent to Gary's termination, defendant Robert Carr was installed as Dean of the Department of Education and Psychology. Plaintiff alleges that although Carr knew of the reason for Gary's termination and had been specifically advised by IHL that she was ineligible for rehire, Carr nevertheless rehired her in September 2010 as an adjunct professor without seeking input from plaintiff, for whom he expressed disdain for having been a whistleblower. Plaintiff states that he complained about Carr's "unlawful conduct," and that contrary to ASU policy, he was not evaluated during the 2010-11 academic year and consequently did not receive a pay raise in January 2012.
The complaint states that in late 2010, Carr formed a "search committee" to select a permanent chair for the Department of Education and Psychology, which committee was comprised of "predominantly female employees with whom Carr knew plaintiff had adversarial relationships." One such member was a Barbara Martin, who "carried a grudge" against plaintiff because he had not supported her application for promotion to professor. Plaintiff alleges that although he qualified and applied for the position, the committee recommended Malinda Butler for the position, notwithstanding that she did not possess the requisite academic rank to qualify for the position; and in June 2011 Carr announced his selection of Butler for the position. Plaintiff alleges that following the alleged "unlawful" choice of Butler over plaintiff as permanent Department Chair, Butler commenced to engage in retaliatory conduct against him, forcing him to vacate his office and move into her old office in an attempt to humiliate him, and then failing to give him a key to the office, leaving him with no access to any office for nearly a month in the summer of 2011. Further, in July 2011, at a time when he was teaching three online classes, Butler sent a letter threatening to terminate him based on his having been absent from the University for more than twenty days, i.e., not physically "on campus", without having received approved FMLA leave for such absence. Plaintiff alleges that other non-disabled faculty members were allowed to teach online courses without threat of termination.
On July 29, 2011, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), complaining of gender discrimination with respect to his claimed "demotion" from his position as interim Department Chair and disability discrimination and retaliation with respect to his threatened termination. Around the same time as his EEOC charge, he filed a formal grievance with defendant Samuel White, Vice President for Academic Affairs, claiming that Butler was unqualified for the position of Department Chair. However, White refused to process the grievance, which led plaintiff to turn to IHL for assistance. He alleges that ASU President Christopher Brown became so angry with him for having contacted IHL that he refused to meet with or discuss any issues with plaintiff.
Ultimately, defendants did schedule a hearing for December 13, 2011. At the time, plaintiff he was approved FMLA leave due to his medical condition. At this time, plaintiff was also the subject of an allegation of sexual harassment by a male student. Plaintiff alleges that defendants, in direct retaliation for his complaints to IHL about his concerns, leaked to the news media that he would be on campus on December 13 for a grievance hearing so that the media could catch him on film. He further alleges that defendants attempted to portray him as homosexual and engaged in gay stereotyping.
Also during this time period, according to plaintiff, despite a directive from IHL to
On January 20, 2012, the Grievance Committee issued its report, finding that Carr had engaged in misconduct in several respects, the "most troubling" being the appointment of Butler as Department Chair. According to the complaint, the committee found that Carr had a clear bias against plaintiff, that he influenced the search committee in an improper manner, and that Butler was not qualified for the position. However, despite the committee's recommendation that a search be reopened, defendants rejected that recommendation and kept Butler in the position. Plaintiff alleges that due to the "continuing retaliation treatment" by defendants, he was forced to take early retirement effective May 15, 2012, which constituted constructive discharge.
Based on these allegations, plaintiff has purported to assert federal claims for violation of the Rehabilitation Act and the Family Medical Leave Act; for violation of his right to free speech guaranteed by the First Amendment; for infringement of his Fourteenth Amendment due process rights; and for conspiracy in violation of his rights under 42 U.S.C. §§ 1983 and 1985. In addition, he has asserted a state law claim for breach of contract. In response to defendants' motion, plaintiff has conceded the conspiracy claim and the FMLA claim. The remaining claims are addressed seriatim.
In Count I of his complaint, plaintiff asserts a claim for disability discrimination under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, based on his allegations that on account of his disability or perceived disability, defendants refused to evaluate him and give him a raise in January 2012 and forced him into early retirement. He additionally alleges that defendants failed to accommodate his disability by refusing to allow him to teach online courses and requiring him to perform duties that should have been done by an office manager.
Section 504 of the Rehabilitation Act "prohibits discrimination on the basis of disability by recipients of federal funds." E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 614 n. 5 (5th Cir.2009); 29 U.S.C. § 794(a) (providing that "[n]o otherwise qualified individual with a disability in the United States [as defined in this title] shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...."). Claims under the Rehabilitation Act are analyzed under the same standards applicable to claims brought under the Americans with Disabilities Act (ADA), including the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Cohen v. Univ. of Texas Health Sci. Ctr., 557 Fed.Appx. 273, 276-79 (5th Cir.2014) (ADA and Rehabilitation Act are jointly interpreted so that jurisprudence interpreting either section is applicable to both) (citations omitted). Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination or retaliation. To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show that (1) he has a disability; (2) he was otherwise qualified for his job; (3) he worked for a program or activity receiving Federal financial
Defendants argue that plaintiff cannot establish a prima facie case of disability discrimination as he cannot show he had a qualifying disability. "The threshold issue in a plaintiff's prima facie case is a showing that [he] suffers from a disability[.]" Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir.1999) (per curiam). "To come within the coverage of the [Rehabilitation Act], a person must have a `physical or mental impairment that substantially limits one or more major life activities.'" Duncan v. Univ. of Texas Health Science Ctr. at Hous., 469 Fed. Appx. 364, 368-69 (5th Cir.2012) (quoting 42 U.S.C. § 12102(1)(A)). "These are activities such as `hearing, speaking, breathing, learning and working.'" Id. (quoting McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 280 (5th Cir.2000)). "An impairment is substantial if it `substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.'" Lanier v. Univ. of Texas Sw. Med. Ctr., 527 Fed.Appx. 312, 318 (5th Cir.2013) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). As defendants correctly point out, plaintiff has not described the nature of his alleged disability — other than to mention unspecified "health problems" and a "spinal cord disorder" — and he has not indicated the manner in which any such condition substantially limits any major life activity. His allegations are manifestly insufficient to state a prima facie case.
Moreover, there is no proof that plaintiff suffered an adverse employment action solely on account of any claimed disability. In his response to the motion, plaintiff maintains that his pleading and evidence that he was constructively discharged satisfy the requirement of an adverse employment action. While a constructive discharge does qualify as an adverse employment action, Thomas v. Atmos Energy Corp., 223 Fed.Appx. 369, 376 (5th Cir.2007) (citations omitted), plaintiff's evidence is insufficient to support a finding that he was constructively discharged. Plaintiff notes that
David v. Pointe Coupee Parish Sch. Bd., 247 F.3d 240, 2001 WL 43530, at *2 (5th Cir.2001). Plaintiff argues that he has presented facts to support both alternatives.
As to the second alternative method of demonstrating constructive discharge, plaintiff points out that in her July 2011 letter regarding his unapproved absences, Butler wrote: "[A]t this time there is no other alternative other than to not consider you for employment beyond the contracted nine months in the future." Plaintiff contends this raises a question of fact as to whether he was constructively discharged. In so arguing, he seems to suggest that this language meant that his contract would not be renewed once it expired in May 2012 — but if that were the case, then there was no ultimatum or need for him to have resigned. Yet plaintiff does not allege that his contract was recommended for nonrenewal. The letter does not support his claim of constructive discharge.
For the reasons cited, plaintiff's claim under the Rehabilitation Act will be dismissed.
In Count II of the complaint, plaintiff alleges that he was constructively discharged in breach of his "continued employment contract" with ASU/IHL. Defendants contend, first, that plaintiff's claim for breach of contract must be dismissed since plaintiff failed to give the pre-suit notice required by the Mississippi Tort Claims Act. See Miss.Code Ann. § 11-46-11(1) (requiring that person seeking to bring claim covered by MTCA must file notice of claim with chief executive officer of the governmental entity at least 90 days before instituting suit). While a claim for breach of an implied contract provision is covered by the MTCA and thus would be subject to the MTCA's pre-suit notice provision, see City of Jackson v.
As with federal law, the standard for constructive discharge under Mississippi law is exacting: "In order for a constructive discharge to have occurred the employer must have made conditions so unbearable that in turn the employee reasonably feels compelled to resign." LaFoe v. Mississippi Empl. Sec. Com'n, 909 So.2d 115, 118 (Miss.Ct.App.2005) (citing Hoerner Boxes, Inc. v. Mississippi Empl. Sec. Comm'n, 693 So.2d 1343, 1347 (Miss. 1997)). To reiterate, plaintiff's allegations and proof do not even come close to satisfying this standard. It follows that he has no cognizable claim for breach of contract.
Plaintiff alleges that defendants "disregarded [his] right" to a grievance hearing" in violation of his Fourteenth Amendment right to due process. Apparently, this allegation has reference to plaintiff's allegation that defendants failed to afford him a hearing in connection with his formal grievance challenging the selection of Malinda Butler as Department Chair. He also vaguely alleges that defendants' "wrongful conduct" violated his rights under the First Amendment.
While "Section 1983 provides a private right of action for damages to individuals who are deprived of `any rights, privileges, or immunities' protected by the Constitution or federal law by any `person' acting under the color of state law," Stotter v. Univ. of Texas at San Antonio, 508 F.3d 812, 821 (5th Cir.2007) (quoting 42 U.S.C. § 1983), plaintiff has not sued defendants under 42 U.S.C. § 1983 for the alleged violations of the First and Fourteenth Amendments.
To the extent these claims are brought against one or more individual defendants in their individual capacities, they are due to be dismissed for other reasons. Regarding his due process claim, defendants contend that plaintiff had no constitutional right to a grievance hearing, but that even if such a right did exist, plaintiff was afforded a hearing, as acknowledged by his own allegations. Indeed, it appears that the grievance to which plaintiff's due process claim is directed relates to his "demotion" from the interim Department Chair position; yet he had no arguable property interest in that position; and without a property interest, he can have no viable due process claim. See Harrington v. Harris, 118 F.3d 359, 368 (5th Cir.), cert. denied, 522 U.S. 1016, 118 S.Ct. 603, 139 L.Ed.2d 491 (1997) (explaining that to succeed with a claim based on substantive due process in the public employment context, the plaintiff must show that he had a property interest/right in his employment, and that the public employer's termination of that interest was arbitrary or capricious); McDonald v. City of Corinth, Tex., 102 F.3d 152, 155 (5th Cir.1996) (observing that a claim of procedural due process requires that the plaintiff had a protected property interest in her employment, and that the termination of the interest was effected without the requisite procedural protections). "An employee has a property interest in his employment only when a legitimate right to continued employment exists." McDonald, 102 F.3d at 155 (citing Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). Plaintiff's contract with IHL for his position as interim Department Chair recited the following:
Moreover, his contract for that administrative position ended May 2011. Thus, there
The basis for plaintiff's allegation that defendants' "wrongful conduct" violated his rights under the First Amendment is not clear.
Plaintiff alleges that he suffered retaliation by each of the individual defendants. He alleges that Doris McGowan retaliated against him after he reported to IHL that she had forged his signature on a pay voucher. However, he does not allege that he suffered an adverse employment action at the hands of McGowan. Plaintiff alleges that Carr expressed disdain for plaintiff's having been a whisteblower; but plaintiff does not tie this allegation to any protected speech. Likewise, plaintiff alleges that Butler engaged in retaliatory conduct yet does not even suggest what plaintiff may have done that prompted her to retaliate. He alleges that White took no action in response to his grievance regarding the selection of Butler for Department Chair; but this does not qualify as an adverse employment action, and in any event, plaintiff gives no indication as to reason for White's actions (or inaction). Brown merely refused to meet with or discuss any issues with plaintiff (which is not an adverse employment action) because he was angry with him for complaining to IHL that he had not been given a grievance hearing (which is not a matter of public concern and hence not protected speech). Plaintiff's putative First Amendment claim thus fails to state a viable claim for relief and will be dismissed.
Based on all of the foregoing, it is ordered that plaintiff's complaint in this cause is dismissed with prejudice.
Plaintiff's allegation that defendants' failed to accommodate his disability fails for this same reason. See Lanier v. Univ. of Texas Sw. Med. Ctr., 527 Fed.Appx. 312, 318 (5th Cir. 2013) (prima facie case of discrimination for failure to accommodate requires that plaintiff show, inter alia, that he was disabled).