Sutton v. Bailey

TOBY J. SUTTON PLAINTIFF

v. PATRICIA BAILEY, individually and in her official capacity as Vice-Chancellor ofAcademic and Student Affairs; and KELLIE THOMAS, individually and inher official capacity as Director of Instruction DEFENDANTS

No. 3:11CV00123 JLH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION

Dated: January 13, 2012

OPINION AND ORDER

Toby Sutton has sued Patricia Bailey and Kellie Thomas, two officials of Arkansas State University, pursuant to 42 U.S.C. § 1983, alleging that they violated his procedural due process rights under the Fourteenth Amendment to the Constitution of the United States by terminating his employment contract without notice and a hearing. The defendants have moved for summary judgment, and Sutton has responded. The motion for summary judgment will be denied.¹

A court should enter summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The moving party bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden, the nonmoving party must respond by coming forward with specific facts establishing a genuinedispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). In deciding a motion for summary judgment, a court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. PHL Variable Ins. Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute exists only if the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make an adequate showing sufficient to establish a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552.

The defendants contend that the undisputed facts establish that Sutton was provided with adequate procedural due process; that Bailey and Thomas are entitled to qualified immunity; and that Sutton cannot be reinstated because the term of his employment contract has expired.

A. Procedural Due Process

"The Due Process Clause of the 14th Amendment provides that, '[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.' " Krentz v. Robertson, 228 F.3d 897, 902 (8th Cir. 2000) (citing U.S. Const. amend. XIV, § 1)). "Procedural due process claims require a two-step analysis." Id. "Initially, a plaintiff must demonstrate that the state deprived him of some 'life, liberty, or property' interest." Id. "If successful, the plaintiff must then establish that the state deprived him of that interest without sufficient 'process.' " Id.

Sutton had an employment contract for a term of nine months during which, according to the provisions of his employment contract and the faculty handbook, he could be terminated only for cause. Under Arkansas law, he therefore had a legitimate expectation of continued employmentduring that term. See Griffin v. Erickson, 277 Ark. 433, 437, 642 S.W.2d 308, 310 (1982) ("a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract."); Drake v. Scott, 823 F.2d 239, 241 (8th Cir. 1987) ("The Supreme Court of Arkansas has . . . announced a clear rule: if the contract of employment (which may be embodied in a personnel manual . . .) 'contains an express provision against termination except for cause [an employee] may not be arbitrarily discharged in violation of such a provision.' ") (quoting Gladden v. Ark. Children's Hosp., 292 Ark. 130, 136, 728 S.W.2d 501, 505 (1987)); Cisco v. King, 90 Ark. App. 307, 205 S.W.3d 808 (Ark. Ct. App. 2005) (recognizing that Gladden is still binding Arkansas precedent). Consequently, for the purposes of ruling on this motion for summary judgment, the Court concludes that Sutton had a constitutionally protected interest in his employment for the period provided by his employment contract.

"When a state deprives a public employee of a contractually-created property right to continued employment, that deprivation 'must be preceded by notice and opportunity for hearing appropriate to the nature of the case.' " Krentz, 228 F.3d at 902 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)). However, where adequate post-termination proceedings are available, the level of pre-termination process required is limited: the employer must provide the employee with notice that he will be terminated and an opportunity to respond. Id. at 902-03; Richardson v. Booneville School Dist., 766 F. Supp. 2d 910, 916-17 (W.D. Ark. 2011). In order to permit the employee to "present his side of the story," some sort of hearing is required. Krentz, 228 F.3d at 903 (quoting Loudermill, 470 U.S. at 546, 105 S. Ct. 1487). The hearing, however, need not be elaborate; perhaps nothing more than an informal meeting with the employee's supervisors. Id. Furthermore, "[t]he hearing does not have to precede thetermination decision, but only must precede the termination of benefits." Id. (quoting Schleck v. Ramsey Cnty., 939 F.2d 638, 641 (8th Cir. 1991)).

As noted, limited pre-termination process is only sufficient where adequate post-termination proceedings are available. Id. (quoting Schleck, 939 F.2d at 641-42); see also Richardson, 766 F. Supp. 2d at 9117.² In cases similar to the instant one, the Eighth Circuit has identified four basic requirements of due process for post-termination proceedings:

1) clear and actual notice of the reasons for termination in sufficient detail to enable him or her to present evidence relating to them;

2) notice of both the names of those who have made allegations against the teacher and the specific nature and factual basis for the charges;

3) a reasonable time and opportunity to present testimony in his or her own defense; and

4) a hearing before an impartial board or tribunal.

Riggins v. Bd. of Regents of Univ. of Neb., 790 F.2d 707, 712 (8th Cir. 1986). There appears to be some disagreement about whether due process, in the context of a state university professor's termination, requires the opportunity to cross-examine or confront adverse witnesses. Compare Id., with Nevels v. Hanlon, 656 F.2d 372, 376 (8th Cir. 1981); see also Richardson, 766 F. Supp. 2d at 917 (following Nevels); Casada v. Booneville Sch. Dist. No. 65, 686 F. Supp. 730, 732 (W.D. Ark. 1988) (same).

In the instant case, it is undisputed that Sutton was first notified of his alleged misconduct at the meeting with Bailey and Thomas on November 3, 2010.³ At that meeting, Sutton was askedto explain his Facebook post, and stated that he had meant the comment as a joke. Although there is a factual dispute about whether Sutton was given an opportunity to explain himself at the meeting before he was told that his employment was terminated, it appears undisputed that his benefits were not terminated until some weeks later.⁴

However, the Court cannot find as a matter of law that the post-termination proceedings available to Sutton were constitutionally adequate. The University's "Faculty Grievance Procedure" states that,

The grievance is filed with the vice chancellor for academic and student affairs, who will make an initial determination as to whether the complaint states a grievable issue.⁵

If a grievable issue is stated, the grievant and respondent must represent themselves before the grievance committee. Legal representation or spokespersons are not appropriate.

It is unclear whether an employee may seek review by the grievance committee unilaterally, or whether the vice chancellor must find that the employee has stated a grievable issue in order for the employee to have the opportunity to take his complaint to the committee. If the latter, then the grievance procedure falls far short of the minimum requirements of due process elucidated above because the procedure does not impose upon the vice chancellor any duty to provide the employee with the names of adverse witnesses or a chance to testify, cross-examine, or even participate in anysort of hearing. Supposing, however, that an employee may take his complaint to the grievance committee unilaterally, then that committee "will 1) study the written complaint, 2) take testimonies from concerned parties, 3) examine relevant files and/or documents, and 4) either recommend that the grievance be dismissed or recommend a remedy." Although this procedure anticipates that the employee will be able to testify on his own behalf, it is not clear whether the employee may learn the names of those witnesses testifying against him or cross-examine them.⁶

Because the undisputed facts do not resolve these questions, the Court cannot say as a matter of law that the University's grievance procedure provides the basic requirements of due process necessary to render them constitutionally adequate. Consequently, the Court also cannot conclude as a matter of law that Sutton was provided with sufficient pre-termination process. See Schleck, 939 F.2d at 641 ("The Loudermill Court emphasized that as long as there are adequate post-termination hearings available, the pre-termination hearing need not be extensive.") (emphasis added).

The defendants argue that Sutton has waived his right to challenge the adequacy of the process provided him by failing to invoke the University's grievance procedure. See Krentz, 228...