Terrence J Hall v. Mississippi State Institutions of Higher Learning ( 1996 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CC-01298-SCT
TERRENCE J. HALL, M.D.
v.
BOARD OF TRUSTEES OF STATE INSTITUTIONS
OF HIGHER LEARNING
DATE OF JUDGMENT: 10/21/96
TRIAL JUDGE: HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOSEPH L. McNAMARA
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ED DAVIS NOBLE, JR.
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
(OTHER THAN WORKERS' COMPENSATION)
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART -
5/14/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 6/4/98
BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.
SMITH, JUSTICE, FOR THE COURT:
¶1. The genesis of this case arises from an anonymous, written complaint against Dr. Terrence J. Hall
involving allegations of sexual harassment against a female medical student. The Department of
Human Resources at the University of Mississippi Medical Center (hereinafter"UMC") authorized the
campus police to conduct a full-scale investigation into the allegations. After the investigation was
completed, the Department of Human Resources concluded that the evidence presented showed that
although UMC's sexual harassment policy was not violated, Dr. Hall's conduct constituted
inappropriate behavior. As a result, Dr. Hall was issued a written reprimand. All documentation of
the investigation and the written reprimand were included in Dr. Hall's personnel file.
¶2. Dr. Hall initiated a faculty grievance in accordance with the Faculty/Staff Handbook and the
Procedures of UMC. At all levels of University review, including review by a Faculty Grievance
Committee, Dr. Hall was denied all relief requested. Dr. Hall then appealed to the Board of Trustees
of State Institutions of Higher Learning (hereinafter "the Board"), and the Board affirmed the
decision of the Faculty Grievance Committee. Dr. Hall next filed a Petition for Writ of Certiorari with
the Circuit Court of the First Judicial District of Hinds County alleging that the Board's affirmance of
UMC's conduct was arbitrary and capricious and in violation of his constitutional right to substantive
due process. The circuit court denied all relief requested by Dr. Hall.
¶3. Dr. Hall now appeals to this Court the circuit court's denial of relief and claims that he was denied
substantive due process by both UMC and, ultimately, the Board by UMC's failure to follow its
internal procedures in launching an unjustified investigation and in the review thereof by failing to
actually exercise professional judgment by denying him any of the relief which he sought for the
wrongs done to him. The Board claims that Dr. Hall's substantive due process rights were not
violated because Dr. Hall has no protected property interest as an untenured professor and no liberty
interest in his reputation. We reject Dr. Hall's claim of a protected property interest and hold that Dr.
Hall did have a protected liberty interest but suffered no deprivation of that liberty interest. We do,
however, agree that all of the investigatory material should be removed from the personnel file. We
find persuasive the procedure of Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1537
(M.D. Fla. 1991), and require that these materials be removed from Dr. Hall's personnel file and be
placed in a confidential UMC campus police file. We accordingly affirm in part, and reverse and
render in part.
FACTS
¶4. Dr. Hall, a surgical oncologist, served in a teaching position at the University of Mississippi
Medical Center (hereinafter "UMC") from 1990 until 1996. While at UMC, Dr. Hall's career was on
schedule for him to eventually become eligible for tenure when in 1994, Dr. A. Wallace Connerly
received a typed, anonymous letter containing specific allegations of sexual harassment against Dr.
Hall.
¶5. The alleged incident that gave rise to the anonymous letter occurred sometime between late
November and early December when one of Dr. Hall's students, a third year female medical student,
approached Dr. Hall with questions concerning how to correctly interpret a mammogram. However,
before the anonymous letter surfaced, rumors were circulating of the alleged incident in Clinic 2, and
such rumors led Dr. Carol Scott-Conner, Professor in the Surgery Department, to investigate the
rumors by asking the third year female medical student and Dr. Hall about the incident. Dr. Scott-
Conner, before the Faculty Grievance Committee, testified that at this time the student told her that
she went into Dr. Hall's office to inquire about how to interpret a mammogram and that Dr. Hall, in
demonstrating the technique, touched her breast to explain the procedure. The medical student
further told Dr. Scott-Conner that "[Dr. Hall] did not to (sic) it with any kind of lascivious intent,"
but she did feel that what Dr. Hall did was improper. However, Dr. Scott-Conner stated that the
student did not voice any desire to take the matter any further.
¶6. When Dr. Scott-Conner questioned Dr. Hall about the matter, Dr. Hall responded that he did not
remember any such touching of the student's breast. Dr. Scott-Conner additionally stated that she
told Dr. Hall that whether the incident occurred or not that "the way things are now in this society,
you can't touch students." Dr. Scott-Conner further testified that she thought that after talking to the
medical student and Dr. Hall that nothing further needed to be done and did not even report it to Dr.
Robert S. Rhodes, Chairman of the Department of Surgery, because she felt like it was a closed
issue. However, Dr. Rhodes later learned of the episode and questioned Dr. Scott-Conner about her
knowledge of the incident, and Dr. Scott-Conner told Dr. Rhodes that she talked to the medical
student and Dr. Hall and that she considered the issue closed after doing so.
¶7. Dr. Scott-Conner then stated that her conversation with Dr. Rhodes was the last she heard of it
until the anonymous letter surfaced. The anonymous letter alleged that upon being presented with this
question that "Dr. Hall grabbed the student's breast with both hands and proceeded to demonstrate
the process of mammography by squeezing her breasts in different positions and referring to them as
'tits' as he massaged her breast for several minutes in full view of other employees, nurses and other
medical students." The letter additionally stated that "Some of us did go and complain to Dr. Scott-
Conner, the Vice-chair of Surgery, and expressed outrage at this inexcusable behavior." The letter
concluded with the statement, "The fact that UMC has allowed him to continue to perform in the
institution unpunished is evidence that the men who dictate UMC policy are simply colluding with
this unacceptable practice. At the very least this should be investigated by an impartial body outside
the University." Copies of the anonymous letter were mailed to Chancellor Turner, the Board of
Trustees, and Attorney General Mike Moore.
¶8. The anonymous letter was forwarded to the UMC Department of Human Resources for the
purpose of investigation in accordance with UMC policy(1) which provides that all written complaints
of sexual harassment will be investigated by Campus Police. The Assistant Director for Equal
Employment Opportunity ordered the Chief Investigator for the Campus Police to conduct an official
investigation of the complaint. A full-scale investigation was conducted and signed statements were
taken from the alleged victim; all of the other third year medical students who were assigned rotation
in Surgical Clinic 2 at the time of the alleged incident; two of the resident doctors assigned to the
Surgery Department; Dr. Carol Scott-Conner; a Registered Nurse in Clinic 2; a Registered Nurse in
Ambulatory Services; a nurses aide in Clinic 2; and Dr. Hall. In addition, a telephone conversation
was conducted with a doctor no longer at UMC but who was on the block for surgery in Clinic 2
during the time that the alleged incident took place. All of these documents were included and still
remain as part of Dr. Hall's personnel file.
¶9. The medical student in her statement to the police stated that the anonymous letter was
erroneous. She further stated in reference to Dr. Hall placing his hands on her breast to demonstrate
the orientation in which mammograms are taken:
Let me say at this point that I was surprised by that act but I did not feel humiliated or
was I afraid. I did feel irritated. I really thought of this as an explanation to my question
that I asked. I think that Dr. Hall's behavior was inappropriate for a staff member, but I
don't think he did it with lecherous intentions. (emphasis added.)
¶10. Dr. Hall upon being asked by Campus Police to make a statement regarding the anonymous
letter stated:
Regarding this letter, let me say that the only thing that I know is that several months ago an
M3 medical student . . . was on my service in Clinic 2 and at that time she asked questions
about evaluation of a mammogram. I remember describing the orientation of mammograms to
the student and reviewing the mammogram on the x-ray viewing box. That's my full
recollection, that's all I remember. There was no lewd conduct, no abnormal behavior other
than the training of the student in the normal fashion.
¶11. After the completion of the investigation conducted by Campus Police, the Department of
Human Resources determined and informed Dr. Rhodes that there was no basis to substantiate a
finding that UMC's sexual harassment policy had been violated. However, the Department of Human
Resources found that Dr. Hall had engaged in inappropriate behavior as a member of the teaching
faculty and recommended that he be given a written reprimand and told that "failure to refrain from
any conduct or action perceived as sexual harassment or improper conduct could result in his
immediate termination."
¶12. The recommendation of the Department of Human Resources was followed by Dr. Rhodes
actually issuing a written reprimand and informing Dr. Hall of the consequences of possible
immediate termination if any further conduct or action that could be perceived as sexual harassment
or improper conduct took place. Dr. Rhodes additionally informed Dr. Hall that
[Y]our effectiveness as a faculty member of this department and at UMC has been seriously, if
not totally, compromised. I also do not believe you will be able to achieve the degree of career
recognition and/or satisfaction you seek by remaining here at UMC. Thus, I have concluded
that both your interests and UMC's interests would be best served by your seeking a position
elsewhere.
¶13. Upon receiving this written reprimand, Dr. Hall initiated a faculty grievance in accordance with
the Faculty/Staff Handbook and the Procedures of UMC. In his Grievance Report Form, Dr. Hall
gave notice of his grievance as to the findings set forth in the reprimand letter including, but not
limited, to the following: (1) the finding of "inappropriate" behavior; (2) that this finding was
obviously initiated by an anonymous charge that was found to have been unfounded; (3) the
proclamation that his services at UMC would be terminated as a result of the findings; and (4) the
threat that further conduct would result in immediate termination, although there had been a finding
that he had not engaged in conduct which amounted to sexual harassment.
¶14. The first level of the grievance procedure involved Dr. Hall agreeing to an informal discussion,
as opposed to a formal written complaint with response in writing, regarding his grievance with Dr.
Rhodes acting in his capacity as Chairman of the Department of Surgery. However, when Dr. Rhodes
was asked by Dr. Hall to please be prepared to discuss all incidents pertaining to the alleged pattern
of inappropriate behavior, Dr. Rhodes responded that he was not aware of all the incidents pertaining
to the alleged pattern of inappropriate behavior and refused to discuss the matter. Feeling that the
informal meeting was not productive, Dr. Hall then filed a formal complaint with Dr. Rhodes. Dr.
Rhodes concurred with the findings of the Department of Human Resources and denied all relief
requested by Dr. Hall.
¶15. Dr. Hall next proceeded to the second step of the grievance procedure, a tape recorded meeting
with Dr. Helen R. Turner, Associate Dean for Academic Affairs. After reviewing all of the
investigation materials provided by the Department of Human Resources, speaking with the medical
student, and discussing the grievance with Dr. Hall, Dr. Turner concurred with the actions taken by
Dr. Rhodes in issuing the reprimand.
¶16. Still aggrieved, Dr. Hall next took his grievance to the third level of the grievance procedure,
review before the UMC Faculty Grievance Committee, alleging that he had not received due process
as a result of the investigation conducted by the Department of Human Resources based on an
anonymous charge of alleged sexual harassment and not a formal complaint signed by his accuser.
Dr. Hall further alleged that grievous damage had been done to his reputation as a result of the
contents that were included in his personnel file. Before the Faculty Grievance Committee, Dr. Hall
requested the following relief: (1) the purging of his personnel file of all documents which relate to
the alleged sexual harassment incident; (2) a withdrawal of the findings that he engaged in
"inappropriate behavior;" and (3) a reversal of the premature decision that his contract shall not be
renewed.
¶17. At the beginning of the Faculty Grievance Committee's review, Dr. Roland B. Robertson,
Associate Vice-Chancellor for Health Affairs chairing the Faculty Grievance Committee, stated the
committee's intended focus of Dr. Hall's grievance was as follows:
Let's make it clear at this point that those allegations [of sexual harassment] were not proven,
and so we are not here to deal with that issue. The issue--and I'd like for the committee
members to correct me if they do not agree with this --the issue is appropriateness of conduct,
behavior and action. Also, there was an allusion in some statements, about his professional
capabilities. We are not here to delve into those, because we don't feel that's a purview of this
particular body, and that would be up to the chairman and the medical staff of the hospital, and
so forth. So, I am trying to limit this to what has been termed inappropriate behavior,
statements, and so forth. So that's what we're trying to get at.
After reviewing the investigative materials included in Dr. Hall's personnel folder and meeting on
eight different occasions receiving both written and oral statements, transcribed by a court reporter,
to consider Dr. Hall's grievance, the committee recommended to Dr. A. Wallace Conerly, Vice
Chancellor for Health Affairs, that Dr. Hall behaved inappropriately while demonstrating positioning
of a breast for mammography on the third year female medical student. In reaching its conclusion that
a reprimand of Dr. Hall was appropriate, the committee stated:
All things considered, the committee was left to make a credibility choice between Dr. Hall and
. . . a third year female medical student. It is our considered opinion that [the medical student]
was truthful when she responded "correct" when asked ". . . so, he demonstrated the positions
using your breast?" Thus, it was concluded that inappropriate behavior did occur and therefore,
a reprimand of Dr. Terrence Hall by Dr. Robert S. Rhodes was appropriate.
The committee further concluded that it could not recommend the purging of Dr. Hall's personnel
record of the investigative files related to the alleged sexual harassment incident because "[p]ersonnel
records are kept indefinitely according to UMMC policy and cannot be accessed without the written
consent of the employee." Furthermore, the committee, in denying Dr. Hall's request to reverse the
decision of the Chair of the Department of Surgery not to renew his contract beyond the current
academic year, concluded that "[i]nstitutional policy places faculty employment decisions within the
prerogative of the respective department through its Chairman" and, thus, left that decision for the
respective department and for the administration of UMC. Dr. Conerly reviewed the record and
recommendation of the committee and concurred with its finding that Dr. Hall had conducted himself
with inappropriate behavior.
¶18. Dr. Hall next appealed his grievance before the Board of Trustees of State Institutions of Higher
Learning (hereinafter "the Board") seeking relief from the adverse decisions throughout the levels of
University review. However, the Board refused to provide Dr. Hall any relief and affirmed the
decision of the University of Mississippi Medical Center Faculty Grievance Committee.
¶19. Following the Board's adverse decision, Dr. Hall filed a Petition for Writ of Certiorari in the
Circuit Court of the First Judicial District of Hinds County appealing the Board's decision. In his
petition, Dr. Hall alleged that the Board's affirmance of UMC's conduct was arbitrary and capricious
and error as a matter of law, for such conduct violated his constitutionally protected right to
substantive due process under both the United States Constitution and the Mississippi Constitution of
1890. The circuit court granted Dr. Hall's request for a Writ of Certiorari. However, after reading the
record, considering the briefs submitted by each party, hearing oral arguments, and considering
applicable judicial precedent, the circuit court, without a written opinion, denied Dr. Hall the relief
requested in his Writ of Certiorari.
¶20. Aggrieved by the circuit court's decision, Dr. Hall appeals to this Court and cites the following
issues:
I. WHETHER DR. HALL WAS DENIED SUBSTANTIVE DUE PROCESS BY THE
UNIVERSITY OF MISSISSIPPI MEDICAL CENTER AND THE BOARD OF
TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING.
II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE BOARD'S
DECISIONS WERE NOT ARBITRARY AND CAPRICIOUS.
STANDARD OF REVIEW
¶21. Review by the trial court and this Court of orders of a state agency are limited by the arbitrary
and capricious standard. Mississippi State Tax Comm'n v. Mask, 667 So. 2d 1313, 1314-15 (Miss.
1995) (citing Mississippi State Tax Comm'n v. Dyer Inv. Co., 507 So. 2d 1287, 1289 (Miss. 1987))
. An appeal of an order of an administrative agency "should be to determine whether or not the order
of the administrative agency '(1) was supported by substantial evidence, (2) was arbitrary or
capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some
statutory or constitutional right of the complaining party.'" Mask, 667 So. 2d at 1315 (quoting
Mississippi State Tax Comm'n v. Vicksburg Terminal, Inc., 592 So. 2d 959, 961 (Miss. 1991)).
DISCUSSION OF LAW
I. WHETHER DR. HALL WAS DENIED SUBSTANTIVE DUE PROCESS BY THE
UNIVERSITY OF MISSISSIPPI MEDICAL CENTER AND THE BOARD OF
TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING.
¶22. Dr. Hall alleges that he has been denied his right to substantive due process under the
Fourteenth Amendment of the United States Constitution by the University of Mississippi Medical
Center and the Board of Trustees of State Institutions of Higher Learning. Dr. Hall does not allege
that he was denied procedural due process by either UMC or the Board. Dr. Hall further contends
that his protected liberty interest in his reputation was deprived by UMC and the Board in an
arbitrary and unreasonable manner. Dr. Hall argues that UMC abused its internal procedures in an
arbitrary and capricious manner by launching a full-scale investigation based on an anonymous letter
alleging conduct of sexual harassment. Dr. Hall additionally contends that he has been denied
reasonable non-arbitrary professional judgment in the processing of his grievance. The ultimate relief
requested by Dr. Hall is the purging of his personnel file of all documents which relate to the alleged
sexual harassment incident, for Dr. Hall does not seek an order of reinstatement to the University of
Mississippi Medical Center.
¶23. The Board contends that neither UMC or the Board has acted in an arbitrary or capricious
manner. The Board also argues that Dr. Hall's constitutionally protected right to substantive due
process has not been violated because Dr. Hall had no protected property interest in his employment
at UMC nor a protected liberty interest in his reputation. The Board further contends that Dr. Hall's
personnel file should not be purged because it is a confidential file and cannot be accessed without
the permission of Dr. Hall.
A. Substantive Due Process
¶24. The United States Fifth Circuit Court of Appeals has best set forth the conceptual analysis
bound up with a claim of substantive due process as follows: "The conceptual essence of 'substantive'
due process is the notion that the Due Process Clause--in addition to setting procedural minima for
deprivations of life, liberty, or property--bars outright 'certain government actions regardless of the
fairness of the procedures used to implement them.'" Brennan v. Stewart, 834 F.2d 1248, 1255 (5th
Cir. 1988) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Fifth Circuit further
noticed that "[t]he Supreme Court has never advanced a rigorous theoretical framework for the
classification and analysis of all 'substantive' due process claims, but the interrelated strands of the
doctrine are relatively clear." Id.
¶25. The Fifth Circuit recognized the following two strands of the substantive due process doctrine
by stating:
One form of "substantive" due process is the substantive protections in the Bill of Rights that
have been "incorporated" into the Fourteenth Amendment to limit the power of the states.
While it would be more conceptually elegant to think of these substantive rights as "privileges
or immunities of citizens of the United States" rather than as deprivations of liberty or property
without due process of law, as a matter of doctrinal history the "selective" incorporation of the
Bill of Rights has proceeded under the theory that those substantive rights "implicit in the
concept of ordered liberty" (and only those rights) are protected against state intrusion by the
Due Process Clause. Another form of "substantive" due process is the judicial ban on laws or
actions by government officials that "shock the conscience" and thus fall outside the bounds of
legitimate governmental activity.
The Due Process Clause also requires that the states act only through means appropriately
related to legitimate ends. This strand of the "substantive" due process doctrine itself is
composed of two parts: rationality limitations and normative limitations on government power.
Every law or governmental act must be reasonably related to its end, and thus not "arbitrary."
Certain laws or actions are unconstitutional, however, even if rationally related to the state's
purposes or ends. One historical manifestation of this normative limitation on state power was
simply to declare certain ends illegitimate. But the modern technique has been to require a
"compelling" state interest reflected in laws that are "narrowly drawn to express only the
legitimate state interests at stake." This normative limitation, whose requirement of a tight "fit"
between means and ends was imported from the "strict scrutiny" approach of modern equal
protection law, "is 'strict' in theory but usually 'fatal' in fact."
Id. at 1255-56 (citations omitted) (footnotes omitted). The Fifth Circuit set forth the relationship
between the two strands as follows: "The strands of 'substantive' due process can be conceptually
distinguished but they are intertwined. Every action by government must be rationally related to its
end, and ends that 'shock the conscience' or otherwise violate the norms 'implicit in the concept of
ordered liberty' are illegitimate." Id. at 1256.
¶26. However, in order to recover "under a substantive due process claim, a plaintiff must show that
the government's deprivation of a property [or liberty] interest was arbitrary or not reasonably related
to a legitimate governmental interest." Williams v. Texas Tech Univ. Health Sciences Ctr., 6 F.3d
290, 294 (5th Cir. 1993) (citing Brennan, 834 F.2d at 1255). Thus, analysis under a substantive due
process claim is not necessary unless Dr. Hall had a protected property or liberty interest.
1. Property Interest
¶27. The United States Supreme Court, in Board of Regents of State Colleges v. Roth, set forth the
applicable analysis in determining whether non-tenured professors at academic institutions of higher
learning have a protected property interest in their continued employment. Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972). In Roth, the Supreme Court, with regard to when a
property interest is present, stated:
To have a property interest in a benefit, a person clearly must have more than an abstract need
or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to
protect those claims upon which people rely in their daily lives, reliance that must not be
arbitrarily undermined. . . .
Property interests, of course, are not created by the Constitution. Rather they are created and
their dimensions are defined by existing rules or understandings that stem from an independent
source such as state law--rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.
Roth, 408 U.S. at 577.
¶28. In determining that Roth, a non-tenured faculty member, had no protected property interest in
being re-employed by the university, the Court relied on Wisconsin state law. Id. at 566-67.
Substantive state law provided that a university teacher could acquire tenure as a permanent
employee only after four years of year-to-year employment, and once having acquired tenure, state
law provided that the teacher was entitled to continued employment "during efficiency and good
behavior." Id. at 566. However, a relatively new teacher was statutorily entitled to nothing beyond
his one-year appointment. Id. at 567. The Court found that state law placed the decision whether to
rehire a non-tenured teacher for another year to the unfettered discretion of university officials. Id.
Thus, the Court ultimately concluded that Roth did not have a protected property interest in being re-
employed. Therefore, in the instant case, whether Dr. Hall had a protected property interest in being
re-employed will depend on Mississippi state law.
¶29. Miss. Code Ann. § 37-101-15 provides the Board of Trustees of State Institutions of Higher
Learning with the following power and duty:
The board shall have the power and authority to elect the heads of the various institutions of
higher learning and to contract with all deans, professors, and other members of the teaching
staff, and all administrative employees of said institutions for a term of not exceeding four (4)
years. The board shall have the power and authority to terminate any such contract at any time
for malfeasance, inefficiency, or contumacious conduct, but never for political reasons. It shall
be the policy of the board to permit the executive head of each institution to nominate for
election by the board all subordinate employees of the institution over which he presides. It shall
be the policy of the board to elect all officials for a definite tenure of service and to reelect
during the period of satisfactory service. The board shall have the power to make any
adjustments it thinks necessary between the various departments and schools of any institution
or between the different institutions.
Miss. Code Ann. § 37-101-15(f) (1996).
¶30. Miss. Code Ann. § 37-101-15(f) and its effect on university professors' employment status was
discussed by this Court in Wicks v. Mississippi Valley State University, 536 So. 2d 20 (Miss. 1988).
In Wicks, this Court held that a non-tenured professor did not have a protected property interest in
his employment because the Board of Trustees of State Institutions of Higher Learning had the
authority to terminate professors' employment contracts at any time for malfeasance, inefficiency or
contumacious conduct. Wicks, 536 So. 2d at 23. The Court held that Miss. Code Ann. § 37-101-
15(f) did "not create a legitimate expectation of continued employment for a non-tenured employee."
Id. (citing Montgomery v. Boshears, 698 F.2d 739 (5th Cir. 1983)). The Court concluded that since
Wicks' "expectation of tenure [was] not legitimate, then his expectation [did] not merit substantive
protection under the due process clause." Id. (citing Bishop v. Wood, 426 U.S. 341 (1976); Wood v.
Strickland, 420 U.S. 308 (1975)).
¶31. Analogously, in the case sub judice, Dr. Hall was in his fourth year of employment as a professor
at UMC and had not been granted tenure by the faculty or Board. Therefore, Dr. Hall did not have a
legitimate expectation of, nor entitlement to, continued employment at UMC, and furthermore, the
renewal of Dr. Hall's contract was subject to approval of the Board. As such, we hold that Dr. Hall
did not have a protected property interest in his employment at UMC, and thus, he is not entitled to
substantive protection under the due process clause as the result of the arbitrary deprivation by
government action of a protected property interest.
2. Liberty Interest
¶32. Analogous to a substantive due process protection against the deprivation of a protected
property interest by arbitrary government action, an individual is afforded substantive due process
protection against arbitrary governmental deprivation of a protected liberty interest. The asserted
liberty interest in the case sub judice is that Dr. Hall possessed a protected liberty interest in his
reputation such that he could not be discharged in such a manner that imposes a stigma on him and
forecloses future employment opportunities.
¶33. The United States Supreme Court has held that an individual does not have a protected liberty
interest in his reputation alone by stating false the proposition that "reputation alone, apart from some
more tangible interests such as employment, is either 'liberty' or 'property' by itself sufficient to invoke
the procedural protection of the Due Process Clause." Paul v. Davis, 424 U.S. 693, 701 (1976).
However, the Court, in Roth, stated that "[t]here might be cases in which a State refused to re-
employ a person under such circumstances that interests in liberty would be implicated." Roth, 408
U.S. at 573. In concluding that Roth did not have any liberty interest implicated by the university
declining to rehire him, the Court stated that his liberty interest could possibly be implicated in the
following scenario:
The State, in declining to rehire the respondent, did not make any charge against him that might
seriously damage his standing and associations in his community. It did not base the nonrenewal
of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality.
Had it done so, this would be a different case. For '[w]here a person's good name, reputation,
honor, or integrity is at stake because of what the government is doing to him, notice and an
opportunity to be heard are essential.' In such a case, due process would accord an opportunity
to refute the charge before University officials. In the present case, however, there is no
suggestion whatever that the respondent's 'good name, reputation, honor, or integrity' is at
stake.
Similarly, there is no suggestion that the State, in declining to re-employ the respondent,
imposed on him a stigma or other disability that foreclosed his freedom to take advantage of
other employment opportunities.
Id. (emphasis added) (citations omitted) (footnote omitted). Thus, it is not clear whether the United
States Supreme Court has afforded a public employee a protected liberty interest in his reputation,
but it would appear certain from the discussion in Roth that where a public employee is dismissed in
such an arbitrary and capricious manner that in doing so the government action "impose[s] on him a
stigma or other disability that foreclose[s] his freedom to take advantage of other employment
opportunities," within his chosen profession, such individual would suffer a deprivation of liberty. Id.
(emphasis added).
¶34. The United States Supreme Court has stated that where an employee is dismissed from
employment in such an arbitrary and capricious manner that the dismissal places a "stigma" on his
reputation and endangers his ability to seek other employment, there has occurred a deprivation of his
liberty. See Paul v. Davis, 424 U.S. 693, 701, 705-06 (1976). In Paul, Davis, after being dismissed
of a charge of shoplifting, brought a 42 U.S.C. § 1983 claim against the petitioner police chiefs
alleging that the petitioner police chiefs had violated his constitutionally protected liberty interest in
his reputation under color of law by distributing his photograph and name in a flier entitled "Active
Shoplifters" to local store owners. Paul, 424 U.S. at 696-97. The Supreme Court, in rejecting Davis'
claim that his constitutionally protected liberty interest in his reputation had been violated, held that
an individual does not have a protected liberty interest in his reputation alone. Id. at 711-12.
However, in recognizing that there may be circumstances where harm by government action to an
individual's reputation would amount to a deprivation of liberty, the Supreme Court stated:
While we have in a number of our prior cases pointed out the frequently drastic effect of the
"stigma" which may result from defamation by the government in a variety of contexts, this line
of cases does not establish the proposition that reputation alone, apart from some more
tangible interests such as employment, is either "liberty" or "property" by itself sufficient to
invoke the procedural protection of the Due Process Clause.
Id. at 701 (emphasis added). In holding that this was not the situation in Paul, the Supreme Court
stated,"'Finally, it is to be noted that this is not a case where government action has operated to
bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment
opportunity.'" Id. at 705 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 898 (1961) (citing
Wieman v. Updegraff, 344 U.S. 183, 190-91 (1952); Joint AntiFacist Refugee Comm. v.
McGrath, 341 U.S. 123, 140-41 (1951))). Thus, where arbitrary and capricious government action
results in damage to a public employee's reputation such as to foreclose the employee's future
employment opportunities there may be a deprivation of liberty.
¶35. In addition, this Court has held that "[t]he existence of a property interest is determined by
constitutional law." Wicks, 536 So. 2d at 22. "Article 3 § 14 of the Mississippi Constitution provides
that 'No person shall be deprived of life, liberty, or property except by due process of law.'" Id. While
the existence of a property interest can be created by state law, either legislatively or judicially,
likewise, the existence of a protected liberty interest in an individual's reputation can be created by
this Court. Thus, we create a protected liberty interest in a public employee's reputation where the
following circumstances occur: (1) the alleged injury occurred in either a discharge or re-hiring
process of a public employee; (2) the alleged injury is related to one's reputation; and (3) the injury to
the employee's reputation is coupled with an interest in other employment opportunities that will be
foreclosed as the result of arbitrary and capricious governmental action.
B. Substantive Due Process Analysis
¶36. Having set forth the theoretical framework of a substantive due process analysis and determined
that an individual may suffer a deprivation, by arbitrary and capricious governmental action, of his or
her protected liberty interest in his or her reputation where such governmental action forecloses that
individual's employment opportunities, the question remains as to when such a deprivation of liberty
occurs by arbitrary and capricious governmental action. The issue of the appropriate substantive due
process analysis to be applied where an employee claims a deprivation of a liberty interest in violation
of his substantive due process rights is one of first impression before this Court.
¶37. Today, we find persuasive the following analysis, formulated by the United States District Court
for the Northern District of Mississippi in Ishee v. Moss, 668 F. Supp. 554 (N.D. Miss. 1987), for
determining whether deprivation of a liberty interest has occurred. In Ishee v. Moss, the federal
district court formulated the following three part analysis for determining whether there has been
deprivation of a liberty interest:
A constitutionally protected liberty interest is implicated only if an employee is discharged in a
manner that creates a false and defamatory impression which stigmatizes and forecloses him
from other employment opportunities. [White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981)];
Codd v. Velger, 429 U.S. 624, 628 . . . (1977). Moreover, for a charge to be stigmatizing, it
must be worse than merely adverse; it must be such as to give rise to a "badge of infamy, public
scorn, or the like." [Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256 n.16 (5th Cir. 1984)]
(and cases cited therein). Finally, the employee must show that the governmental agency has
made the stigmatizing charges public in any official or intentional manner, other than in
connection with the defense of related legal action. Wells, 736 F.2d at 256; Ortwein v. Mackey,
511 F.2d 696, 699 (5th Cir. 1975). In summary, to support a claim of deprivation of a liberty
interest, a plaintiff must show (1) that he has been stigmatized, (2) in or as a result of the
"discharge" process, and (3) that the stigmatization resulted from charges made public by his
employer. [Kelleher v. Flawn, 761 F.2d 1079, 1087 (5th Cir. 1985)]; Wells v. Doland, 711
F.2d 670, 676 (5th Cir. 1983).
Ishee, 668 F. Supp. at 558. Application of this analysis to the case sub judice shows that Dr. Hall's
substantive due process rights were not violated nor was he deprived of his protected liberty interest
in his reputation.
¶38. In order to prove an implication of his constitutionally protected liberty interest, Dr. Hall must
first show that he has been "discharged in a manner that creates a false and defamatory impression
which stigmatizes and forecloses him from other employment opportunities." Id. The event that
ultimately led to the discharge of Dr. Hall was the finding by UMC that Dr. Hall had conducted
himself inappropriately and that it was in the better interest of UMC to not renew his contract. It is
Dr. Hall's contention that this finding should have never been made because it was arbitrary
governmental action for UMC to investigate the anonymous complaint of sexual harassment filed
against Dr. Hall. Dr. Hall further contends that the scope of the investigation was too broad and that
the inclusion into his personnel file of all investigatory materials and refusal at each level of the
grievance procedure to remove the materials from his personnel file continues to harm his reputation
and other employment opportunities.
¶39. Dr. Hall's personnel file contains statements made in connection with the investigation that
amount to nothing more than free reign being given to students and co-workers to express their
opinions about Dr. Hall's professional conduct which in no way were connected to the anonymous
complaint of sexual harassment made against Dr. Hall. As a result, we find that the continued
inclusion within Dr. Hall's personnel file of all the raw investigatory materials as the result of the
investigation into the complaint of sexual harassment made against Dr. Hall did result in the discharge
of Dr. Hall "in a manner that creates a false and defamatory impression which stigmatizes and
forecloses him from other employment opportunities," and thus, Dr. Hall satisfies the first part of the
Ishee analysis. Id.
¶40. Next, Dr. Hall is required to prove the second element of the Ishee analysis which requires that
"for a charge to be stigmatizing, it must be worse than merely adverse; it must be such as to give rise
to a 'badge of infamy, public scorn, or the like.'" Id. (quoting Wells, 736 F.2d at 256 n.16). Dr. Hall's
future employment opportunities are continuously harmed by the contents of his personnel file to the
effect of attaching a stigma to Dr. Hall's reputation amounting to the level of a badge of infamy, i.e.,
that for another institution to employ Dr. Hall they will run the risk of having a sexual harassment
charge filed against the respective institution. In today's society with the already existing hysteria for
employers to be subjected to liability for a charge of sexual harassment by one of its employees,
UMC's actions and the Board's actions of allowing all materials of the investigation which resulted in
no finding of sexual harassment to remain in Dr. Hall's personnel file wrongly attaches to Dr. Hall's
reputation the stigma of being a potential sexual harasser. Thus, the effect of UMC's and the Board's
actions amount to more than being merely adverse, but, instead, their actions place a stigma on Dr.
Hall that rises to the level of a "badge of infamy" which forecloses his ability to pursue other
employment opportunities. As a result, Dr. Hall satisfies the second element of the Ishee analysis.
¶41. Finally, in order to be afforded any relief Dr. Hall "must show that the governmental agency has
made the stigmatizing charges public in any official or intentional manner, other than in connection
with the defense of related legal action." Id. The federal district court, in Ishee, with regard to the
contents of a confidential file after an investigation, stated:
Disclosure within an agency may implicate a liberty interest if the disclosure is gratuitously
made to persons with no responsibility for or interest in the matter disclosed. Ventetuolo v.
Burke, 470 F. Supp. 887, 896 (D.R.I. 1978). Here no such gratuitous disclosures have been
shown. All disclosures mentioned in the pleadings, evidence at the hearing on the preliminary
injunction, briefs following that hearing, and memorandum in the present motion for summary
judgment have been those made in connection with the investigation into the charges. Clearly,
the agency must have the right to investigate charges against its employees and must have
immunity in the reasonable investigation of these charges. Nor does the presence of the
derogatory information in the confidential file implicate a liberty interest absent a showing that
the employer has made or is likely to make the disclosure public in an official or intentional
manner. Wells, 736 F.2d at 258 n.20; Kelleher, 761 F.2d at 1087; Sims v. Fox, 505 F.2d 857,
864 (5th Cir. 1974) . . . .
Ishee, 668 F. Supp. at 559. The district court, in granting summary judgment, concluded that Ishee
failed to meet his burden of showing that the charges contained in the confidential file ever became
public by stating that "[t]here is no evidence the general public or employees other than those
questioned in connection with the investigation ever became aware of the reason for termination." Id.
¶42. Likewise, Dr. Hall has not put forth any evidence that "the general public or employees other
than those questioned in connection with the investigation ever became aware of the reason for
termination." Id. Although, Dr. Hall's personnel file contains investigatory materials that, if released
to the general public, could result in the implication of Dr. Hall's constitutionally protected interest in
his reputation, the materials have been retained in Dr. Hall's personnel file which can only be accessed
with the permission of Dr. Hall, and furthermore, there is no evidence that the contents of the file
have been made available to the general public. However, Dr. Hall contends that the materials will be
disclosed publicly in an official manner when he is required to release permission for his personnel file
to be viewed by a future potential employer. We cannot conclude that this future contingent
publication is sufficient to satisfy the publication requirement in Ishee to prove implication of Dr.
Hall's protected liberty interest.
¶43. As a result, Dr. Hall has failed to satisfy his burden of proof under this third part of the Ishee
analysis by failing to show that the false and defamatory materials contained in his personnel file have
been or will be made public in an official or intentional manner. We hold that Dr. Hall has not shown
that he was deprived of his constitutionally protected liberty interest in his reputation, and thus, there
has been no violation of Dr. Hall's substantive due process rights.
II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE BOARD'S
DECISIONS WERE NOT ARBITRARY AND CAPRICIOUS.
¶44. Although Dr. Hall fails to prove that there has been a violation of his substantive due process
rights by failing to satisfy the publication requirement, the Board's decision still has to be reviewed
under our traditional arbitrary and capricious standard of review for decisions by administrative
agencies. See Mississippi State Tax Comm'n v. Mask, 667 So. 2d 1313, 1314-15 (Miss. 1995)
(citing Mississippi State Tax Comm'n v. Dyer Inv. Co., 507 So. 2d 1287, 1289 (Miss. 1987)).
Where a decision of an administrative agency is appealed to the circuit court pursuant to a writ of
certiorari as provided by Miss. Code Ann. § 11-51-93, the circuit court's review of the decision of
state agencies is to "be confined to the examination of questions of law arising or appearing on the
face of the record and proceedings." Miss. Code Ann. § 11-51-93 (1972). This Court's decision in
Gill v. Mississippi Department of Wildlife Conservation sets forth the appropriate analysis for
reviewing the Board's decision on a writ of certiorari under section 11-51-93 as follows:
At first blush this would seem to pretermit any review of the facts and even our normal inquiry
whether there may be substantial evidence to support the decision of the [administrative agency]
. On the other hand, should the record and proceedings below reflect a decision wholly
unsupported by any credible evidence, we would regard that decision as contrary to law and, as
a matter appearing on the face of the record or proceedings, subject to modification or reversal.
We thus are in our familiar posture of judicial review of administrative processes wherein we
may interfere only where the board or agency's decision is arbitrary and capricious, accepting in
principle the notion that a decision unsupported by any evidence is by definition arbitrary and
capricious.
Gill v. Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 591(Miss. 1990). Thus, we will
find the Board's decision was arbitrary and capricious only where it is unsupported by any evidence.
Gill, 574 So. 2d at 591.
¶45. After receiving the anonymous complaint of sexual harassment against Dr. Hall, the Department
of Human Resources at UMC initiated an investigation by campus police into the anonymous
complaint, concluded that although the results of the investigation did not support a finding that
UMC's sexual harassment policy had been violated, the results of the investigation did support a
lesser finding of inappropriate behavior by Dr. Hall, and recommended that Dr. Hall be given a
formal written reprimand. Dr. Hall subsequently received a written reprimand by Dr. Rhodes, the
respective department chairman. Dr. Hall then filed a grievance in accordance with UMC's internal
grievance procedure, and this decision was affirmed at all levels of the grievance procedure including
review by the Faculty Grievance Committee and the Board.
¶46. The Faculty Grievance Committee affirmed the decision to issue a formal written reprimand to
Dr. Hall based on its conclusion that the evidence presented a credibility call between Dr. Hall and
the female medical student and that the medical student was truthful when she responded
affirmatively to inquiry whether Dr. Hall had touched her breast while demonstrating how to perform
a mammogram. The medical student consistently testified throughout this matter that she believed
that Dr. Hall's actions were inappropriate but that she did not feel humiliated or afraid nor did she feel
that Dr. Hall acted with lecherous intentions. Thus, we find that the decision of the Board to affirm
the finding of inappropriate behavior and issue a written reprimand was not an arbitrary and
capricious decision because it was supported by the medical student's testimony.
¶47. Dr. Hall, however, contends that it was arbitrary and capricious action for UMC to even
investigate the anonymous complaint because UMC policy required that all complaints of sexual
harassment must be in writing. Dr. Hall argues that although the complaint was in writing that
because it was not signed by an identified individual, the complaint should not have been investigated.
However, we do not believe it was arbitrary and capricious action by UMC to investigate the
anonymous complaint of sexual harassment because of the seriousness of the charge and the potential
liability that UMC could face if it failed to investigate the charge and such claim was later found to be
meritorious. See Stockley v. AT & T Info. Sys., Inc., 687 F. Supp. 764, 768 (E.D.N.Y. 1988)
(holding that employer's decision to initiate investigation of anonymous letter was proper where the
letter provided reasonable grounds that sexual harassment may have been committed and
investigation was required under Title VII). However, in the future, it would be more appropriate for
UMC to consider following the guidance issued in 1997 by the Department of Education entitled
Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or
Third Parties which sets forth a balancing test of when to investigate anonymous complaints of sexual
harassment. The Guidance provides that anonymous complaints of sexual harassment should be
investigated if review of the following factors deems it reasonable for the school to investigate: "the
source and nature of the information; the seriousness of the alleged incident; the specificity of the
information; the objectivity and credibility of the source of the report; whether any individuals can be
identified who were subjected to the alleged harassment; and whether those individuals want to
pursue the matter." Sexual Harassment Guidance: Harassment of Students by School Employees,
Other Students, or Third Parties, 62 Fed. Reg. 12,034, 12,044 (1997).
¶48. Dr. Hall further contends that the scope of UMC's investigation into the anonymous complaint
was arbitrary and capricious. Dr. Hall argues that it was unreasonable for UMC to continue its
investigation after the medical student indicated that she did not feel like Dr. Hall's conduct was done
with lecherous intentions. However, we are of the opinion that UMC's investigation of the matter
was not unreasonable and further that UMC was required to investigate the incident. After all, the
student also stated that Dr. Hall's actions were "inappropriate for a staff member," which was the
ultimate finding against Dr. Hall. To place such tight restraints on UMC as to how to investigate
charges of sexual harassment would effectively place UMC on the fine line of a razor's edge, and we
are not compelled to place such restraints on UMC which might subject it to liability for failing to
prevent sexual harassment if it does not investigate the complaint and the complaint later be proven
meritorious or to hold it liable if it oversteps the proper bounds of an investigation. See McDonnell
v. Cisneros, 84 F.3d 256, 261 (7th Cir. 1996) (refusing to hold employer liable for sexual harassment
where investigation was overbroad because to do so would place employer's decision to investigate
on a razor's edge).
¶49. Finally, Dr. Hall contends that it was arbitrary and capricious for UMC to include all of the
materials from the investigation within his personnel file, thus harming his ability to obtain future
gainful employment. The Board and UMC have asserted that it is UMC's policy to include the
investigatory materials in an employee's personnel file and further contend that they are mandated by
federal guidelines to include these materials in Dr. Hall's personnel file. However, neither the Board
nor UMC provided this Court with the stated policy or provided federal regulations within this
record, that require the placement of the investigatory materials in Dr. Hall's personnel file. We are of
the opinion that the Board's and UMC's decision to keep these materials in Dr. Hall's personnel file
was arbitrary and capricious and that these materials should not remain in Dr. Hall's personnel file.
Instead, they should be returned to and stored in the confidential investigation file maintained by
campus police who conducted the investigation.
¶50. In Robinson v. Jacksonville Shipyards, Inc., the United States District Court for the Middle
District of Florida enjoined Jacksonville Shipyards to adopt, implement, and enforce a policy and
procedures for the prevention and control of sexual harassment. Robinson v. Jacksonville
Shipyards, Inc., 760 F. Supp. 1486, 1537 (M.D. Fla. 1991). In Robinson, the policy that the federal
district court ordered to be implemented provided that an employee's personnel file would only
include a statement regarding "the conduct, or alleged conduct, and the warning given, or other
discipline imposed." Robinson, 760 F. Supp. at 1543. Likewise, we hold that UMC is required to
place in the personnel file of Dr. Hall only a statement regarding the conduct, the findings of the
investigation, and a statement regarding the disciplinary action taken against Dr. Hall.
¶51. As a result, we find that the trial court did not err in finding the Board's actions were not
arbitrary and capricious with the exception of the Board's decision to retain in Dr. Hall's personnel
file all of the investigatory materials from UMC's investigation which was arbitrary and capricious.
CONCLUSION
¶52. Thus, we find that an individual does have a constitutionally protected liberty interest in his
reputation that may be deprived by arbitrary and capricious government action where the employee is
discharged in such a manner that stigmatizes his reputation and forecloses future employment
opportunities and adopt the three part analysis set forth in Ishee v. Moss for determining when there
has been a deprivation of that constitutionally protected liberty interest. However, we find that Dr.
Hall's substantive due process rights were not violated, for he has failed to sufficiently provide
evidence satisfying the third part of the Ishee analysis regarding publication of the stigmatizing
charges.
¶53. We also find that the Board's and UMC's conclusion that Dr. Hall's conduct was inappropriate
and the discipline imposed on Dr. Hall was not an arbitrary and capricious action. Further, we find
that the Board's decision to affirm UMC's conduct of investigating the anonymous complaint of
sexual harassment, and the method of investigation chosen, was not arbitrary and capricious.
However, we do find that the Board's decision to retain in Dr. Hall's personnel file all of the
investigatory materials as the appropriate place to retain the materials was arbitrary and capricious.
These materials should be removed from Dr. Hall's personnel file and returned to campus police who
conducted the investigation and maintained as UMC deems appropriate. Only a statement regarding
the alleged conduct, the findings of the investigation, and the discipline imposed on Dr. Hall should
be contained in his personnel file.
¶54. AFFIRMED IN PART; REVERSED AND RENDERED IN PART FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.
PRATHER, C.J., ROBERTS, MILLS AND WALLER, JJ., CONCUR. McRAE, J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
SULLIVAN AND PITTMAN, P.JJ. BANKS, J., NOT PARTICIPATING.
McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶55. The majority correctly finds that Dr. Hall suffered no deprivation of his constitutional rights
from the University of Mississippi Medical School's inquiry into anonymous allegations of sexual
harassment brought against him. However, the opinion goes too far in ordering the investigatory
materials to be removed from his personnel files and placed in a confidential UMC campus police file.
It further goes beyond the scope of the relief sought in directing the school to follow certain policies
and procedures in the investigation and maintenance of records in sexual harassment complaints.
Accordingly, I dissent.
¶56. Anonymous allegations of sexual harassment, as the majority points out, warrant investigation
just as do those that have been signed because of the serious nature of such charges and the
employer's potential liability. Stockley v. AT &T Information Systems, Inc., 687 F. Supp. 764, 769
(E.D.N.Y. 1988). In the legal profession, anonymous complaints against attorneys and judges are
treated with the same seriousness as those where the complainant has identified himself. There is no
reason why members of the medical and academic communities should be held to a lesser standard.
The majority, therefore, goes a step too far in allowing Dr. Hall's personnel file to be cleansed of all
investigatory material.
¶57. The majority exceeds the scope of our authority in suggesting that the Medical School, in the
future, should follow the sexual harassment guidelines issued by the United States Department of
Education in 1997. It is not our prerogative to dictate the school's policies or procedures, whether
the subject matter at issue is the investigation of complaints of sexual harassment made against
faculty members or a determination of what classes students are required to take. Rather, it is within
the ambit of the Legislature, since the school is a State institution, or of an accrediting organization
or agency such as the American Medical Association, to issue such a directive. By the same token,
the majority has overstepped its boundaries in its "holding" that "UMC is required to place in the
personnel file of Dr. Hall only a statement regarding the conduct, the findings of the investigation,
and a statement regarding the disciplinary action taken against Dr. Hall," based on the Florida District
Court's mandate in Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1537 (M.D. Fla.
1991). In that case, as distinguished from the case sub judice, the plaintiff sought injunctive relief in
the form of the employer's adoption and enforcement of policies and procedures to prevent sexual
harassment. Dr. Hall sought no such injunctive relief and it is, therefore, not within our purview to
revise the school's policies.
¶58. Because I disagree with the majority's decision that Dr. Hall's files should be cleansed and with
its attempts, beyond our scope of authority, to revamp UMC's policies, I respectfully dissent.
SULLIVAN AND PITTMAN, P.JJ., JOIN THIS OPINION.
1. UMC's policy regarding complaints of sexual harassment and the investigation thereof is set out in
the Faculty and Staff Handbook as follows:
Any complaint by a UMC student or employee of sexual harassment must be reported
immediately to the Director of Human Resources or the Assistant Director for Equal
Employment Opportunity. All complaints must be in writing and will be investigated by Campus
Police. The employee also may follow the Medical Center's grievance procedure and may go
directly to step three of the procedure if the complaint is against the person to whom a
grievance is presented at step one or two. In all cases, Human Resources will take disciplinary
action up to and including termination. This rule applies equally to sexual harassment of both
men and women.