Shively v. Utah Valley Univ.

ANN SHIVELY, in her capacity as presumptive personal representative on behalf of all beneficiaries of the estate of Michael Jay Shively, Plaintiff - Appellant, v. UTAH VALLEY UNIVERSITY; ASTRID S. TUMINEZ; KAREN CLEMES; SARA J. FLOOD, Defendants - Appellees.

No. 20-4088

United States Court of Appeals, Tenth Circuit

April 6, 2022

(D.C. No. 2:20-CV-00119-DB) (D. Utah)

Before BACHARACH, KELLY, and CARSON, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Joel M. Carson III Circuit Judge.

Dr Michael Jay Shively taught at Utah Valley University ("UVU") from 1993 until his death. In response to allegedly false accusations of misconduct, UVU administrators opened an investigation into Dr. Shively in March 2019 that lasted over five months. University officials suspended him with pay during that time. The investigation eroded Dr Shively's mental health. He committed suicide in August. Plaintiff Ann Shively, his wife, sued UVU and the administrators involved in the investigation on behalf of his estate, alleging due process violations, wrongful death, negligent infliction of emotional distress, breach of implied contract, and civil conspiracy. The district court dismissed every claim with prejudice after Defendants moved for judgment on the pleadings. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Dr. Shively, a tenured professor, taught at UVU, a public university, and directed its anatomy program.^[1] UVU's administrators began investigating Dr. Shively after receiving complaints about his teaching performance and behavior toward students and colleagues. Plaintiff alleged that Defendant Sara Flood, another UVU professor, filed complaints and solicited student complaints against Dr. Shively because she wanted his job. During the investigation, UVU suspended Dr. Shively but allowed him to continue receiving his full salary and benefits. The investigation lasted over five months, from March until Dr. Shively's untimely death in August 2019. According to Plaintiff, UVU administrators knew the complaints lacked credibility but prolonged the investigation to isolate and shame Dr. Shively. They even pressured him to retire or resign. The investigation caused Dr. Shively severe emotional distress-and the administrators knew it. The emotional distress led to his suicide in August 2019.

Following Dr. Shively's death, Plaintiff sued UVU, UVU's President, Dr. Astrid S. Tuminez, UVU's General Counsel at the time, Karen Clemes, and Flood. Plaintiff alleged (1) Tuminez and Clemes violated Dr. Shively's due process rights by suspending him based on a bogus investigation and without him committing "a serious offense affecting the public interest" as required in UVU's Policies and Procedures; (2) UVU's investigation wrongfully caused Dr. Shively's death; (3) UVU and its administrators negligently inflicted emotional distress on Dr. Shively by initiating and unnecessarily prolonging the investigation; (4) UVU breached its implied contract with Dr. Shively; and (5) Tuminez, Clemes, and Flood conspired to remove Dr. Shively from his job.

The district court dismissed Plaintiff's claims with prejudice. It dismissed the due process claims for failing to plead the deprivation of a clearly established property right. It determined that the Governmental Immunity Act of Utah barred the wrongful-death and negligent-infliction-of-emotional-distress claims. It dismissed the contract claim for failure to allege damages. And it dismissed the conspiracy claim for failure to allege a meeting of the minds.

Plaintiff appeals the district court's dismissal with prejudice of every claim except the civil-conspiracy claim.^[2]

II.

"We review a district court's grant of a motion for judgment on the pleadings de novo, using the same standard that applies to a Rule 12(b)(6) motion." Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (citation omitted). This means we accept Plaintiff's factual pleadings as true and resolve all reasonable inferences from the pleadings in favor of Plaintiff. Id. To survive a Rule 12(b)(6) motion, Plaintiff's complaint must allege sufficient facts to state a claim for relief plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (defining a facially plausible claim as one where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged").

III.

Plaintiff contends the district court improperly dismissed her due process claims because Defendants deprived Dr. Shively of his constitutionally protected property interest in continued employment with UVU. Plaintiff also argues that the district court incorrectly interpreted the Governmental Immunity Act of Utah. Plaintiff finally appeals the district court's dismissal of her contract claim for failure to plead damages. Taking each issue in turn, we affirm.

A.

We begin with the due process claims. Plaintiff must get over the qualified-immunity hurdle to survive dismissal of these claims. Qualified immunity "protects public employees from both liability and from the burdens of litigation arising from their exercise of discretion." Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (internal quotation marks omitted). To overcome qualified immunity, Plaintiff must prove (1) Defendants violated Dr. Shively's statutory or constitutional right that was (2) clearly established when UVU suspended him. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The Court can tackle either prong first. Id. The district court determined that Tuminez and Clemes did not deprive Dr. Shively of his property interest in continued employment. We agree with the district court because Dr. Shively's suspension with pay does not offend due process; and even if it did, the right is not clearly established under the particular facts alleged in this case.

The Fourteenth Amendment forbids "any State [from] depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. For a state actor to deprive a citizen of a property interest, the Due Process Clause requires the actor to provide some sort of notice and hearing "appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted). Independent sources, such as state law, create and define the property interest. Id. at 538 (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). For example, a state can confer a constitutionally protected property interest in continued employment. See id. at 538-39. And we have held tenured professors have a property interest in their employment. See, e.g., Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 517 (10th Cir. 1998). But the key question is whether Plaintiff pleaded facts plausibly showing that Tuminez and Clemes deprived Dr. Shively of this protected property interest. See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000).

Generally, suspension with pay does not raise due process concerns because a suspension with pay does not infringe on an employee's protected property right in continued employment. See Hicks v. City of Watonga, 942 F.2d 737, 746 n.4 (10th Cir. 1991) (citing Loudermill, 470 U.S. at 544-45 (noting that suspending an employee with pay can avoid due process problems)); see also Pitts v. Bd. of Educ., 869 F.2d 555, 556 (10th Cir. 1989) (finding that the district court correctly held that "suspension with pay did not deprive [the public employee] of any measurable property interest."). But Plaintiff's argument is more nuanced. Plaintiff contends that administrators may violate due process by indefinitely suspending a tenured faculty member with pay where the suspension causes the faculty member to suffer "indirect economic effects."

We have never adopted (or even considered) Plaintiff's theory in a published opinion. Recognizing the lack of circuit authority for her position, Plaintiff seemingly relies on a Seventh Circuit case which mentions the possibility that potential "indirect economic effects" of a suspension with pay could "trigger the protection of the Due Process Clause." Luellen v. City of East Chicago, 350 F.3d 604, 613-14 (7th Cir. 2003) (citation omitted).

But neither Luellen nor any other case relied upon by Plaintiff is persuasive in the context of this case. Indeed although some of Plaintiff's authorities mention the "indirect economic effects" theory, none actually found a deprivation of a protected property right under the Fourteenth Amendment on that basis. See id. at 608-09, 613-14 (no property deprivation when a fire department suspended an employee with pay pending a nearly twenty-one-month investigation even though he lost the opportunity to earn on-call pay during the investigation); Townsend v. Vallas, 256 F.3d 661, 664-66, 676 (7th Cir. 2001) (no property deprivation when a school temporarily reassigned a teacher to an administrative position during a nearly three-month investigation, foreclosing his ability to earn extra income from coaching but still paying him his full teacher's salary); Bordelon v. Chi. Sch. Reform Bd. of Tr., 233 F.3d 524, 526, 530-31 (7th Cir. 2000) (no property deprivation when a school board transferred a principal to an administrative position for fifteen months but still afforded him his full pay and benefits); Swick v. City of Chicago, 11 F.3d 85, 86-87 (7th Cir. 1993) (no property deprivation when a police department placed an officer on involuntary sick leave for over a year but still paid him his full income). And Plaintiff's complaint never alleged that Dr. Shively's loss of an "indirect economic benefit" resulted in a due process violation. So, even if we found Plaintiff's "indirect...