Mulligan v. Ind. Univ. Bd. of Trs.

ROBERT MULLIGAN, Plaintiff, v. INDIANA UNIVERSITY BOARD OF TRUSTEES, KATHRYN CRUZ-URIBE in her officialand individual capacities, and MICHELLE MALOTT in her official and individual capacities, Defendants.

Case No. 1:19-cv-01834-TWP-MPB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

March 31, 2021

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court on cross Motions for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Plaintiff Robert Mulligan ("Mulligan"), (Filing No. 39), and by Defendants Indiana University Board of Trustees ("IU"), Kathryn Cruz-Uribe ("Cruz-Uribe"), and Michelle Malott ("Malott") (collectively, "Defendants",) (Filing No. 44). Mulligan initiated this action against the Defendants "for violating his Fourteenth Amendment due process rights pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983"), and for Breach of Contract against IU under Indiana common law" after he was removed as Dean of the School of Business and Economics ("SoBE") at Indiana University East ("IU East"), (Filing No. 1 at 1). For the following reasons, the Court grants Defendants' Cross-Motion for Summary Judgment and denies Mulligan's Motion for Summary Judgment.

I. BACKGROUND

On July 1, 2016, Mulligan started his appointment at IU East both as Professor of Economics and as Dean of SoBE. (Filing No. 41-3 at 5.) According to the letter appointing him to the positions (the "Appointment Letter"), Mulligan was to be paid $119,000.00 for his work as professor and $21,000.00 for his work as Dean for the 2016-2017 fiscal year. (Filing No. 41-2 at 2.) Notably, the Appointment Letter indicated that "[s]hould at some point in the future [he] no longer serve[s] in the position of dean and return to a faculty position, [his] salary would be prorated to a standard ten (10) month faculty appointment." Id. Nearly a year later, on July 29, 2017, IU provided Mulligan with a letter (the "2017 Salary Letter") indicating that his salary would increase to $142,800.00 for the 2017-2018 academic year. (Filing No. 41-4 at 2.) This 2017 Salary Letter also included a noteworthy proviso, disclaiming that it did "not constitute a contract" and was "for information only." Id.

In both of his positions, Mulligan reported to Malott, the Executive Vice Chancellor of Academic Affairs. During his time as Dean, Mulligan regularly met with Malott—who, oversaw all units providing academic instruction—to discuss his performance (Filing No. 41-3 at 7; Filing No. 41-1 at 4). From Spring 2017 to Fall 2017, several faculty members of the SoBE complained about Mulligan's leadership; specifically, one faculty member contended that Mulligan discriminated against her because of her pregnancy and three faculty members complained about Mulligan's handling of a confrontation between a female and male faculty member at a meeting in August 2017, (Filing No. 41-3 at 7-9; Filing No. 41-1 at 9-10). As a result of these complaints, IU East opened Title IX investigations into Mulligan's leadership. (Filing No. 41-1 at 13.) As part of the probe, IU East's Office of Human Resources and Office of Affirmative Action interviewed Mulligan and six other faculty members concerning the complaints. (Filing No. 46-6 at 2.)

The interviewed faculty largely expressed concern about Mulligan's leadership abilities, underscoring his "lack of leadership/professionalism," "lack of collaboration with faculty," "lack of communication," and "possible implicit bias towards women." Id. Indeed, two male faculty members reported that they felt women were not being treated well at the Mulligan-led SoBE.(Filing No. 41-1 at 11.) Independent of these issues, three faculty members on a search committee for Dean of the School of Humanities and Social Sciences—a committee chaired by Mulligan—complained that he lacked the necessary communication and leadership skills to successfully direct that pursuit (Filing No. 46-4 at 16).

In August and September 2017, Malott discussed with Mulligan the complaints about his leadership, focusing on how he could improve for the future. Id. at 14-15. But as the Fall 2017 semester progressed, and Mulligan showed no signs of course correcting, Malott decided to remove him as Dean. Id. at 20, 27.

Malott talked with Cruz-Uribe, the Chancellor of IU East, regarding her decision to remove Mulligan as dean; and Cruz-Uribe supported her decision. Id. at 22. Thereafter, in December 2017, Malott informed Mulligan that he would be removed as Dean. Id. Mulligan's appointment as Dean ended on February 11, 2018, and he continued on as a tenured professor at IU East. (Filing No. 41-3 at 5; Filing No. 46-9 at 2.)

On July 30, 2018, Mulligan filed a complaint making a formal grievance concerning his removal with the IU East Faculty Board of Review ("FBR") (Filing No. 46-12 at 2). In his complaint, Mulligan alleged that Malott denied him an opportunity to respond or take corrective actions. To redress the grievance, he requested among other things; expungement of any defamatory material in his 2017 evaluation, a finding that his dismissal was improper and unjustified, and a "salary adjustment, sabbatical and/or change in job title, in lieu of compensatory and punitive damages." Id. at 5. Ultimately, however, the FBR determined, after reviewing grievance and university policies, that Mulligan's desired remedy was "not possible to achieve." (Filing No. 46-14 at 2.) Mulligan then initiated this lawsuit (see generally Filing No. 1), with the parties correspondingly moving for summary judgment (Filing No. 39; Filing No. 44).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews "the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Hemsworth, 476 F.3d at 490 (citation omitted). "In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, "neither the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).

These tenets apply equally where, as here, opposing parties each move for summary judgment in their favor pursuant to Rule 56. I.A.E., Inc. v. Shaver, 74 F.3d 768, 774 (7th Cir. 1996). Indeed, the existence of cross-motions for summary judgment does not necessarily mean that there are no genuine issues of material fact. R.J. Corman Derailment Serv., Inc. v. Int'l Union of Operating Eng'rs., 335 F.3d 643, 647 (7th Cir. 2003). Rather, the process of taking the facts inthe light most favorable to the nonmovant, first for one side and then for the other, may reveal that neither side has enough to prevail without a trial. Id. at 648. "With cross-motions, [the Court's] review of the record requires that [the Court] construe all inferences in favor of the party against whom the motion under consideration is made." O'Regan v. Arbitration Forums, Ins., 246 F.3d 975, 983 (7th Cir. 2001) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).

III. DISCUSSION

In his Complaint, Mulligan brings two claims: Count I: Violations Of Fourteenth Amendment Procedural Due Process Rights By Defendants Cruz-Uribe and Malott; and Count II: Breach of Contract by IU. (Filing No. 1 at 4, 5.) He contends that he is entitled to summary judgment because "undisputed facts and designated evidence show that [he] had an employment contract with IU, the University breached that contract, and he suffered damages as a result" and that he "had a property interest in his continued employment as dean by virtue of his employment contract and . . . was not provided notice or an opportunity to be heard before being removed as dean." (Filing No. 39 at 1.) For their part, Defendants argue that they are entitled to summary judgment because sovereign and qualified immunity shield them from the claims. (Filing No. 45 at 12-16.) Defendants further contend that even if the claims are not barred on immunity grounds, Mulligan's breach of contract claim fails because he was never awarded an employment contract for a definite term and he "served at the pleasure of IU", id. at 19. Defendants contend the Due Process claim fails because Mulligan had no protectable interest in his continued employment, he was afforded all the process due to him, and he had no protected right in enforcing IU's procedures. Id. at 17-28. The Court will first address Defendants' Motion, before turning to Mulligan's Motion.

A. Eleventh Amendment Immunity

Defendants argue that "Mulligan cannot pursue any of his claims against [IU] due to Eleventh Amendment sovereign immunity." (Filing No. 45 at 13.) The Eleventh Amendment precludes a citizen from suing a state or a state agency in federal court without the state's consent or congressional abrogation. See...