Whiting v. Univ. of Southern Miss.


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Docket Number: 2009-CA-01807-SCT
Linked Case(s): 2009-CA-01807-SCT

Supreme Court: Opinion Link
Opinion Date: 03-31-2011
Opinion Author: Kitchens, J.
Holding: Affirmed.

Additional Case Information: Topic: Contract - Tort Claims Act - Exhaustion of administrative remedies - Section 11-46-5(1) - Section 11-46-11 - Tenure application - Due process
Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Chandler, Pierce and King, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE

Trial Court: Date of Trial Judgment: 09-17-2009
Appealed from: Forrest County Circuit Court
Judge: Robert Helfrich
Disposition: Dr. Whiting filed her motion for reconsideration on September 25, 2008, which the trial court denied on October 6, 2009. Dr. Whiting timely perfected her appeal from the trial court's grant of summary judgment to the defendants.
Case Number: CI-02-0206

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Melissa Whiting




KIM T. CHAZE



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: University of Southern Mississippi, Dr. Shelby Thames Officially and Individually, Dr. Dana Thames Officially and Individually, and Dr. Carl Martray Officially and Individually, Board of Trustees for Institutions of Higher Learning JOHN SIMEON HOOKS, LEE P. GORE  

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    Topic: Contract - Tort Claims Act - Exhaustion of administrative remedies - Section 11-46-5(1) - Section 11-46-11 - Tenure application - Due process

    Summary of the Facts: In September 1996, Dr. Melissa Whiting became an assistant professor in the Department of Curriculum, Instruction, and Special Education in the College of Education and Psychology at the University of Southern Mississippi. In May 1997, the Board of Trustees of the State Institutions of Higher Learning approved her for tenure-track status. During her time at USM, Dr. Whiting received five annual evaluations, and in each received the highest marks in the categories of teaching, research, and service. Dr. Dana Thames and Dr. Carl Martray prepared, reviewed, and/or signed each annual evaluation. At the beginning of her sixth year of employment, Dr. Whiting submitted herself for consideration for both tenure and promotion (to associate professor). USM’s review of Dr. Whiting’s application began with a committee of faculty from her department. At their meeting, questions arose over certain articles listed in the publication section of her dossier. The committee chair and Dr. Thames met with Dr. Whiting and requested a written response to these questions. Dr. Whiting submitted her response, including an explanation of the methodology and analysis used to write several of her published articles. After the committee reconvened and considered her response, it voted to award promotion, with six in favor, three against, and two abstentions. The committee voted against awarding tenure, however, with six against, four in favor, and one abstention. Both the committee chair and Dr. Thames notified Dr. Whiting by separate letter of the committee’s conclusions and suggested that she consider withdrawing her request for early tenure. Dr. Thames prepared a written recommendation to the Dean of the College of Education and Psychology, Dr. Carl Martray, regarding the committee’s decisions. In that report, Dr. Thames expressed her agreement with the committee’s concerns, but informed him that Dr. Whiting still wished to move forward with both the tenure and promotion processes. Dr. Whiting’s dossier, as well as the recommendation to Dean Martray and a rebuttal letter from Dr. Whiting, came before the College Advisory Committee, a group of representatives from each department in her College. The CAC voted to deny tenure and promotion, each vote tallying to four against and two in favor, with no abstentions. Dean Martray reviewed the CAC recommendations and Dr. Whiting’s dossier, concluding that he had “no compelling reason to recommend against the CAC’s determination.” He transmitted Dr. Whiting’s materials to the Provost, without recommendation for either promotion or tenure. Dr. Whiting chose to continue with the promotion and tenure process. Accordingly, her dossier came before the University Advisory Council. Ultimately, the UAC voted to award tenure (five voted in favor, three against, and one recusal), but did not reach a conclusion as to promotion (four in favor, four against, and one recusal). Those votes, in addition to another supplementary letter from Dr. Whiting, were then submitted to the Provost, who concurred with the UAC’s recommendation as to tenure, and further recommended promotion. Dr. Whiting’s dossier thus came before University President Shelby Thames, father of Dr. Dana Thames. President Thames wrote to request a meeting with Dr. Whiting to discuss concerns about her application. Dr. Whiting chose not to meet with President Thames. President Thames wrote to Dr. Whiting to inform her that he would not recommend her to the USM Board of Trustees for tenure or promotion. That letter further gave notice that Dr. Whiting’s employment at USM would not be renewed after the academic year ending May 2003. Dr. Whiting appealed to the Board of Trustees. The Commissioner of Education recommended that the Board decline to consider the appeal. The Board did so unanimously, because Dr. Whiting had already filed suit. She alleged state law claims, and federal claims alleging deprivation of substantive and procedural due process. After the defendants filed their notice of removal to federal court, the United States District Court for the Southern District of Mississippi granted summary judgment to the defendants on all federal claims, and remanded the state claims to the circuit court. Dr. Whiting appealed that decision to the Fifth Circuit Court of Appeals, which affirmed the district court. Upon remand, the defendants moved for summary judgment on the remaining state law claims, which the circuit court granted. Dr. Whiting appeals.

    Summary of Opinion Analysis: Dr. Whiting argues that her claim is based upon a breach of contract theory and therefore is not procedurally barred by the requirement of the Tort Claims Act that all administrative remedies must be exhausted. To the extent that Dr. Whiting’s claims are based purely upon a breach of contract theory, as a matter of law, that no contract was formed between Dr. Whiting and the Board with respect to an offer of tenure. Further, the Fifth Circuit Court of Appeals’ ruling that Dr. Whiting had no protected property interest that entitled her to due process considerations is applicable here, as the analysis of due process considerations under the Mississippi Constitution is coextensive with federal law on this point. The subjective expectation of tenure does not create a property interest that is guaranteed by the right to substantive and procedural due process. While Dr. Whiting attempts to characterize her claims as breach of contract, a fair reading of the facts of this case and the manner in which Dr. Whiting lays out her argument establish that if there were a claim to be made, it would be for tortious breach of contract and tortious interference with contract. As such, the claims made against the Board or the university are governed by the provisions of the Tort Claims Act. Section 11-46-5(1) provides a limited waiver of immunity for claims arising from tortious acts of governmental agencies and their employees, and section 11-46-11 provides that notice of a claim must be brought only after all administrative remedies have been exhausted. A valid employment contract with the University of Southern Mississippi cannot exist unless and until the Board of Trustees of State Institutions of Higher Learning approves a nomination by the university’s president. All contracts, therefore, entered into with instructors or professors at the university properly are construed as contractual agreements with the Board and not with the several institutions it supervises or their respective employees. The university and its officers, notwithstanding the fact that they act as agents of the Board, are not parties to any contract formed between the Board and Dr. Whiting. The university and the other defendants named in their individual capacities therefore are free of liability with respect to whatever contractual obligations the Board may have undertaken with respect to Dr. Whiting. Dr. Whiting does not dispute that she did not wait for a final decision from the Board regarding her tenure application, and neither does she dispute that the president has substantial discretion over final recommendations regarding tenure decisions, or that the Board has final discretionary authority over all personnel matters. She alleges merely that the president refused to give her application a fair hearing because his familial relationship with her departmental chair biased him against her application. She makes this allegation without any evidentiary support beyond her suspicion as articulated in her deposition and in the pleadings and motions incorporated in the record. Dr. Whiting consistently overlooks that the tenure review process involves several layers of functionally independent review. At no point during the review process, prior to the provost’s recommendation, was there anything that resembled a broad consensus, much less unanimity, among the review committees. Dr. Whiting’s failure to meet with the president, which she said was on the advice of her attorney, does nothing to support her contention that she was deprived of a fair hearing. As she cannot show that either President Thames or the Board acted outside their duly-authorized discretion in denying her application for tenure, her contention that they breached an obligation to provide due process to her is without merit. To the extent that her claims are based on an alleged violation by the Board of her rights to due process as guaranteed by the Mississippi Constitution, this argument also is without merit. It is clear that there is no legitimate expectation of employment for a nontenured faculty member that creates a protected interest.


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