Klingler v. University of Southern Mississippi

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60007 United States Court of Appeals
Fifth Circuit
FILED
DOCTOR SCOTT KLINGLER, May 11, 2015
Lyle W. Cayce
Plaintiff–Appellant, Clerk
v.
UNIVERSITY OF SOUTHERN MISSISSIPPI, USM; DOCTOR MARTHA
SAUNDERS, Individually and Officially; DOCTOR ROBERT LYMAN,
Individually and Officially,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:12-CV-150
Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
PER CURIAM:*
Dr. Scott Klingler was a tenure-track professor at the University of
Southern Mississippi (USM). USM placed Klingler on administrative leave
after comments he allegedly made raised concerns of campus safety. After
USM declined to renew his annual contract, Klingler sued USM and certain
university officials under 42 U.S.C. § 1983, alleging deprivations of due process
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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and equal protection. He also asserts various Mississippi contract and tort law
claims. The district court granted USM’s motion for summary judgment on all
of Klingler’s claims, and we now affirm.
I
USM retained Klingler as an Assistant Professor at USM’s School of
Library and Information Science (SLIS). USM entered into one-year contracts
with tenure-track professors that, according to USM’s Faculty Handbook
(Handbook), “are renewable entirely at the discretion of the Board.” At the
time of the events giving rise to this suit, Klingler’s contract would terminate
in May 2012 unless renewed by USM.
For the fall 2010 semester, Klingler taught an online course that
included a chat component; he and his students could type their discussion of
the course topics from their personal computers. Klingler, as the course
instructor, could appear “logged out” to the students while still monitoring the
class’s discussion. During one chat session, Klingler expressed his
disappointment in the students’ lack of preparation and ended the session
early. After Klingler logged out, but while he was still reading the chat
transcript, some students questioned whether Klingler’s reprimand was
actually a joke. One student replied, “he’s a joke.”
The following morning, November 9, 2010, Klingler asked Shane Hand,
a graduate assistant, to review the chat transcript. Hand told Klingler that he
believed the student who called Klingler a joke acted inappropriately. Klingler
and Hand have provided different accounts as to how Klingler replied. Hand
reported that Klingler then said, “I have never shot a student and what that
girl said does not bother me, but I think about it and I think about it a lot.”
Klingler denies making this statement and testified at his deposition that he
said, “I’ve never shot anybody for not giving feedback—or words to that effect,”
and then only after Klingler and Hand further discussed the previous night’s
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class did Klingler say, “I’ve thought about it; I’ve thought about it a lot.”
Klingler maintains, “[t]hey were two completely distinct statements. It was
feedback.” Hand promptly reported Klingler’s statement.
That afternoon, a meeting was held by several USM officials at which
Hand was questioned. Hand explained that Klingler’s statements troubled
him because Klingler had also exhibited other strange behaviors that day, such
as sitting uncomfortably close to a female graduate assistant and using profane
language. The officials decided to remove Klingler from campus immediately
and place him on paid administrative leave pending further investigation. He
was banned from campus and from initiating contact with students or faculty.
While on leave, Klingler sent messages through Facebook stating that
he had “been wrongfully accused by a Graduate Assistant” and “was placed on
paid administrative leave.” The messages asked his former students to contact
USM on his behalf. Klingler also posted to Facebook the letter he received
from the dean of SLIS placing him on administrative leave, Hand’s statement
to the USM police, and a mock “mug shot” of himself holding a placard with
numbers and the letters “USM UPD.” There is also evidence that while a
former graduate student was visiting her mother while in a hospital, Klingler
heard the student’s voice, saw her mother’s name on the hospital room door,
and entered to talk to the former student. Klingler told her that he was on
administrative leave and was not permitted to speak with students. This
unexpected encounter was unsettling to the former graduate student, and she
contacted a USM official about it.
In February 2011, USM informed Klingler that his contract would not
be renewed upon its expiration in May 2012. USM also limited Klingler’s
remaining employment activities to academic research. Klingler was
instructed that he was still not permitted to appear on campus or initiate
contact with any USM students, staff, or faculty. Klingler filed a formal
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grievance with USM pursuant to Chapter 12 of the Handbook. The Handbook
provides four levels of institutional review. Klingler’s grievance was
considered and denied at every level.
He then filed suit against USM, Dr. Martha Saunders (the President of
USM), and Dr. Robert Lyman (the Provost of USM) in Mississippi state court.
He sought damages under 42 U.S.C. § 1983 asserting that his rights to due
process and equal protection had been violated, and he alleged state law claims
of intentional infliction of emotional distress, negligent infliction of emotional
distress, breach of express contract, and breach of implied contract.
USM removed the action to the United States District Court for the
Southern District of Mississippi. The district court granted summary
judgment to the defendants on all of Klingler’s claims. Klingler now appeals
to this court.
II
We review a district court’s “grant of summary judgment de novo,
applying the same standards as the district court.” 1 Summary judgment is
warranted if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 2 “A genuine issue of
material fact exists if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” 3 We consider the “evidence in the record
in the light most favorable to the non-moving party and draw all reasonable
inferences in favor of that party.” 4
1 Burnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014).
2 FED. R. CIV. P. 56(a).
3 Bluebonnet Hotel Ventures v. Wells Fargo Bank, 754 F.3d 272, 276 (5th Cir. 2014)
(internal quotation marks and citations omitted).
4 Id.4
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III
Klingler seeks damages under § 1983 against USM and from Lyman and
Saunders in both their personal and official capacities. But in Will v. Michigan
Department of State Police, the Supreme Court held that states are not
“persons” under § 1983 and thus not amenable to suit. 5 We have held that
state universities, as “arms of the state,” are not “persons” under § 1983. 6
Additionally, the Court held in Will that “a suit against a state official in his
or her official capacity . . . is a suit against the official’s office,” and therefore,
“it is no different from a suit against the State itself.” 7 Because “neither a
State nor its officials acting in their official capacities are ‘persons’ under
§ 1983,” such suits against a state or a state official acting in his or her official
capacity must be dismissed. 8
Accordingly, neither USM nor Lyman and Saunders, in their official
capacities, are persons under § 1983 and the claims for damages against them
must be dismissed. Our focus is on Klingler’s damage claims against Saunders
and Lyman personally 9 and his request for prospective injunctive relief. 10
IV
“Section 1983 provides a civil remedy in federal court for violations,
under color of state law, of a person’s constitutionally recognized rights,
5 491 U.S. 58, 66-70 (1989).
6Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007); see also
Bruner v. Univ. of S. Miss., 501 So. 2d 1113, 1115 (Miss. 1987) (“The University of Southern
Mississippi is an agency of the State of Mississippi . . . .”).
7 Will, 491 U.S. at 71.
8 Id.9 See Hafer v. Melo, 502 U.S. 21, 31 (1991).
10 See Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).
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privileges, or immunities.” 11 Klingler alleges Saunders and Lyman deprived
him of constitutionally cognizable property and liberty interests without
providing him due process as required by the Fourteenth Amendment.
A
First, we address whether Saunders and Lyman deprived Klingler of a
constitutionally protected property interest. The protections of the Due
Process Clause, whether procedural or substantive, only apply to deprivations
of constitutionally protected property or liberty interests. 12 Therefore, if an
individual does not have a constitutionally protected property or liberty
interest, he or she cannot be deprived of due process and thus cannot maintain
a § 1983 action. 13 Although Klingler had a personal interest in being permitted
to satisfy the criteria for tenure, his interest was not constitutionally protected.
“Constitutionally protected property interests are created and defined by
understandings that ‘stem from an independent source such as state law.’” 14
While the underlying property interest may be created by state law, “federal
constitutional law determines whether that interest rises to the level” of a
11 Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006) (citation
omitted).
12Whiting v. Univ. of S. Miss., 451 F.3d 339, 344 (5th Cir. 2006) (“The requirements
of procedural due process apply only to the deprivation of interests encompassed by the
Fourteenth Amendment’s protection of liberty and property. Similarly, substantive due
process offers protection to an individual only if that person has either a constitutionally
protected property interest or a similarly protected liberty interest.” (internal quotation
marks and citations omitted)).
13 See DePree v. Saunders, 588 F.3d 282, 289 (5th Cir. 2009) (“The threshold
requirement of any due process claim is the government’s deprivation of a plaintiff’s liberty
or property interest. Without such an interest, no right to due process accrues.” (internal
quotation marks and citations omitted)).
14 Id. (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)).
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constitutionally protected interest. 15 “Resolution of the federal issue begins,
however, with a determination of what it is that state law provides.” 16
Klingler asserts that Saunders and Lyman deprived him of a
constitutionally protected property interest in satisfying the criteria for tenure
by terminating his employment without affording him the performance
reviews from which tenure-track professors achieve tenure as set forth in the
Handbook. Under Mississippi law, non-tenured employees do not have a
legitimate expectation of continued employment. 17 But, their contract rights
do constitute enforceable property interests, 18 and “employee manuals become
part of the employment contract, creating contract rights to which employers
may be held.” 19
In Whiting v. University of Southern Mississippi, Dr. Whiting, a tenure-
track professor at USM, claimed a deprivation of due process when USM
denied her tenure and did not renew her contract. 20 Whiting had received
positive evaluations through her six years of employment and argued she had
a constitutionally protected property interest in attaining tenure because the
Handbook stated that if she met or exceeded the criteria used for evaluation,
“she [was] to be tenured.” 21 But we rejected Whiting’s contention because the
Handbook “consistently reiterate[d] that promotion and tenure are not
guaranteed, even by positive performance reviews,” and “tenure is awarded at
15 Town of Castle Rock, Colo. v. Gonzalez, 545 U.S. 748, 756-57 (2005) (internal
quotation marks and citations omitted).
16 Id. at 757.
17 Wicks v. Miss. Valley State Univ., 536 So. 2d 20, 23 (Miss. 1988).
18 Univ. of Miss. Med. Ctr. v. Hughes, 765 So. 2d 528, 536 (Miss. 2000).
19Whiting v. Univ. of S. Miss., 451 F.3d 339, 345 (5th. Cir. 2006) (citing Robinson v.
Bd. of Trs. of E. Cent. Junior Coll., 477 So. 2d 1352, 1353 (Miss. 1985)).
20 Id. at 340-43.
21 Id. at 345.
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the discretion of the board of trustees.” 22 We concluded Whiting had no
constitutionally protected property interest in continued employment. 23
Attempting to distinguish his case from Whiting, Klingler does not argue
he had a right to tenure but argues instead he had a right to satisfy the tenure
criteria. But Whiting forecloses this argument as well. In Whiting, we held
that Mississippi law and the Handbook do not create a legitimate expectation
of attaining tenure, even when the criteria for tenure are satisfied. It follows,
a fortiori, that Klingler could have no legitimate expectation in an opportunity
to satisfy the tenure criteria. If Saunders and Lyman afforded Klingler the
opportunity to satisfy the tenure criteria, at best, he would find himself in the
same position Whiting was in: the decision over his continued employment
would be entirely within the discretion of the board, and he would have no
legitimate expectation in obtaining tenure. Therefore, Saunders and Lyman
did not deprive Klingler of any constitutionally protected property interest
when USM declined to renew his contract.
Klingler also argues Saunders and Lyman deprived him of a
constitutionally protected property interest when they relieved him of his
teaching assignments and banned him from campus in February 2011. But in
DePree v. Saunders, we held that a tenured professor was not deprived of a
protected property right when he was removed from teaching and prohibited
from entering USM’s business school, because his “tenure, salary and title
remained intact.” 24 Similarly, Klingler had no property interest in either
teaching or in being present on USM’s campus. Because USM paid Klingler
his salary and health benefits until his contract expired in May 2012, he was
22 Id.23 Id. at 346.
24 DePree v. Saunders, 588 F.3d 282, 285-86, 289 (5th Cir. 2009).
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not deprived of a constitutionally protected property interest when he was
reassigned to perform research from home.
B
Klingler claims Saunders and Lyman deprived him of his liberty by
denying him a name-clearing hearing after damaging his reputation. While
property interests are derived from state law, “[p]rotected liberty interests may
arise from two sources—the Due Process Clause itself and the laws of the
States.” 25 A liberty interest in one’s reputation for the purpose of seeking
gainful employment arises from both the Due Process Clause 26 and Mississippi
law. 27 When a public employee is “discharged in a manner that creates a false
and defamatory impression about him and thus stigmatizes him and forecloses
him from other employment opportunities,” he is entitled to notice and an
opportunity to be heard. 28 Regardless of whether the interest arises from state
law or the Due Process Clause, federal constitutional law determines what
process is due. 29
25Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal quotation marks
and citations omitted).
Owen v. City of Independence, Mo., 445 U.S. 622, 661 (1980) (“Due process requires
26
a hearing on the discharge of a government employee if the employer creates and
disseminates a false and defamatory impression about the employee in connection with his
termination.” (internal quotation marks and citation omitted)).
27 Hall v. Bd. of Trs. of State Insts. of Higher Learning, 712 So. 2d 312, 322 (Miss.
1998) (“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 . . . .”).
Bellard v. Gautreaux, 675 F.3d 454, 461 (5th Cir. 2012) (quoting Bledsoe v. City of
28
Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006)).
29 See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“[O]nce it is
determined that the Due Process Clause applies, the question remains what process is due.
The answer to that question is not to be found in [state law].” (internal quotation marks and
citations omitted)).
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This court applies a seven-element stigma-plus-infringement test to
determine when an individual has been unconstitutionally denied a name-
clearing hearing. The plaintiff must show:
(1) he was discharged; (2) stigmatizing charges were made against
him in connection with the discharge; (3) the charges were false;
(4) he was not provided notice or an opportunity to be heard prior
to the discharge; (5) the charges were made public; (6) he requested
a hearing to clear his name; and (7) the employer denied the
request. 30
Klingler argues that he was entitled to a name-clearing hearing because his
reputation was tarnished when he was banned from campus. Although it is
possible Klingler publicized the incident further through his actions while on
administrative leave, he argues USM officials made the incident public by
utilizing USM police officers to march him across campus to ensure he vacated
university premises. He also has had subsequent difficulty obtaining work
elsewhere. Klingler’s formal grievance accused USM of mistreatment and
demanded a hearing for the purpose of reinstating his rights as a tenure-track
professor and for clearing his name. Klingler’s claim ultimately fails because
USM provided him with a constitutionally adequate opportunity to adjudicate
his grievance by fully complying with its own comprehensive faculty-grievance
procedures.
Chapter 12 of the Handbook provides four levels of institutional review
for faculty grievances. After filing his grievance, Klingler discussed with USM
officials the possibility of forgoing the Chapter 12 procedures and adjudicating
his grievance through an agreed-upon process before the University Advisory
Committee (UAC). But the parties could not agree on alternative procedures;
30 Bellard, 675 F.3d at 462 (quoting Bledsoe, 449 F.3d at 653).
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USM thus proceeded to adjudicate Klingler’s grievance pursuant to Chapter
12.
The first level of Chapter 12 review is a conference between the grievant
and the chair of the grievant’s specific department. The conference is intended
to be an opportunity to resolve the conflict informally. After Klingler and USM
could not agree on alternative procedures, USM scheduled a meeting between
Klingler and Dr. Melanie Norton, the department chair of SLIS. Klingler
refused to attend the meeting. Klingler’s counsel wrote to USM that it would
be “a waste of time and money to ‘confer’ when only Dr. Norton will be present,
and we regard such an act as harassment in and of itself.” Klingler nonetheless
submitted a written statement for Norton to review. Norton concluded that
“considering [Klingler’s] conduct on 11/9/2010 and his conduct after being
placed on administrative leave, I find no reason to believe that we could have
handled the situation or Dr. Klingler in any other way.”
If the grievant is dissatisfied with the result of the informal conference,
the dean of the grievant’s college convenes the College Advisory Committee
(CAC) for a formal review on the record. Klingler appealed Norton’s conclusion
to the dean of SLIS. The CAC unanimously decided Klingler’s grievance had
no merit. The CAC specifically addressed the incident for which Klingler
sought a name-clearing hearing:
Regarding the original incident which is alleged to have occurred
on November 9, 2010, given the evidence provided this group, we
were unable to determine if the incident and subsequent action
was sufficient to merit a grievance.
The CAC does find that on more than one occasion, however, Dr.
Klingler’s behavior has been inappropriate. First, it is never
appropriate to reference violence against other individuals,
whether or not it is a direct threat, said “in jest,” or simply a
general statement. Further, on at least two occasions, with
evidence from three seemingly unrelated individuals, Dr. Klingler
disregarded the instruction from the University while he was on
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administrative leave to refrain from contact or interaction with
individuals from the University. That he did not follow this
directive by the Dean and the Provost shows lack of professional
judgment and evidence of insubordination.
Decisions of the CAC can next be appealed to the Provost, who convenes the
UAC. The UAC reviews the record and provides a recommendation to the
Provost, which the Provost may deviate from in his or her final decision.
Klingler appealed the CAC’s decision. The UAC determined that Klingler was
afforded due process and university procedures were properly followed and
thus recommended the Provost take no further action. The Provost then
reviewed Klingler’s grievance and determined it was without merit.
The final level of institutional review is an appeal of the Provost’s
decision to the University President. Saunders reviewed Klingler’s appeal
from the Provost’s decision and also determined that his grievance was not
meritorious.
Over the course of the four appeals, Klingler’s claim that his reputation
was unfairly tarnished was repeatedly considered and rejected. The CAC
specifically found that Klingler acted inappropriately both on the date of the
initiating incident and while he was on administrative leave. USM officials
strictly complied with the grievance procedures in the Handbook, and the
thoroughness of that review process makes it clear to this court that Klingler
was provided a constitutionally sufficient name-clearing hearing, assuming
that he was entitled to one. His claim of a deprivation of liberty without due
process fails as a matter of law.
C
Klingler argues the Chapter 12 grievance procedures could not provide
him with due process because the individuals tasked with reviewing his
grievance were biased against him. Klingler is correct that he was entitled to
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a tribunal of unbiased decision makers, 31 however, he is unable to point to any
evidence in the record indicating unconstitutional bias.
The members of an adjudicative body have been found to be
unconstitutionally biased in three circumstances:
(1) where the decision maker has a direct personal, substantial,
and pecuniary interest in the outcome of the case; (2) where an
adjudicator has been the target of personal abuse or criticism from
the party before him; and (3) when a judicial or quasi-judicial
decision maker has the dual role of investigating and adjudicating
disputes and complaints. 32
Klingler identifies Saunders and Lyman as the biased adjudicators of his
grievance. His claims of bias fall within the second and third categories.
Personal abuse or criticism can render a decision maker
unconstitutionally biased when “contemptuous conduct” by the party embroils
the judge in “controversy [such] that he cannot hold the balance nice, clear,
and true.” 33 Klingler has not made such a showing here. In his grievance
filing, Klingler stated that Saunders and Lyman “secretly banded against
[him] and reached erroneous conclusions.” He now argues that this criticism
of Saunders and Lyman rendered them unconstitutionally biased to adjudicate
his grievances. But, without more, this is not the type of personal abuse or
criticism that has been recognized to create unconstitutional bias. 34 There is
Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 511 (5th Cir. 2001) (citing In
31
re Murchison, 349 U.S. 133, 136 (1955)).
32 Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1052 (5th Cir. 1997) (citation
omitted).
33 Taylor v. Hayes, 418 U.S. 488, 501 (1974) (internal quotation marks and citations
omitted).
34See, e.g., Farmer v. Strickland, 652 F.2d 427, 438-39 (5th Cir. Unit B 1981) (holding
a judge was not unconstitutionally biased to find lawyer in contempt after a heated exchange
during voir dire).
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no evidence in the record that Klingler’s criticism embroiled Saunders and
Lyman such that they could not act as unbiased adjudicators.
The main thrust of Klingler’s claim of bias is that Saunders and Lyman
“convicted” him prior to terminating his employment and adjudicating his
grievance. When a quasi-judicial decision maker serves a dual role of both
investigating and adjudicating disputes, a constitutional infirmity exists only
if the decision maker’s mind was “irrevocably closed” prior to the
adjudication. 35 The party complaining of bias must also overcome strong
presumptions of (1) the adjudicators’ honesty and integrity and (2) that the
decision was made in the public interest. 36 We have further recognized in
academic contexts that “a due process hearing is not rendered constitutionally
inadequate solely because university administrators are asked to review their
own decisions.” 37 There is no evidence in the record indicating Saunders’s and
Lyman’s minds were irrevocably closed, nor is there evidence that overcomes
the strong presumptions regarding Saunders’ and Lyman’s honesty and
integrity and that their decisions were made in the public interest. Saunders
and Lyman are entitled to summary judgment on Klingler’s claims of bias.
D
Klingler also claims Saunders and Lyman violated his right to equal
protection because his employment was terminated while USM’s athletic
director remains employed despite exhibiting “violent behavior.” While equal
protection cases typically concern governmental classifications that impact
35 Valley, 118 F.3d at 1052.
36 Id. at 1052-53.
37Tex. Faculty Ass’n v. Univ. of Tex. at Dall., 946 F.2d 379, 388 (5th Cir. 1991); see
also Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 497 (1976)
(“A showing that the Board was ‘involved’ in the events preceding this decision . . . is not
enough to overcome the presumption of honesty and integrity in policy makers with
decisionmaking power.”).
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groups of citizens in different ways, 38 the Supreme Court has recognized a
“class-of-one” equal protection claim when an individual has “been
intentionally treated differently from others similarly situated and . . . there is
no rational basis for the difference in treatment.” 39 But, class-of-one claims do
not apply in the context of public employment because “employment decisions
are quite often subjective and individualized, resting on a wide array of factors
that are difficult to articulate and quantify.” 40 Because Klingler attempts to
assert a “class-of-one” claim in the context of public employment, his claim fails
as a matter of law.
V
With respect to Klingler’s claims under Mississippi contract and tort law,
Klingler appears to have accepted the district court’s determination that his
claims for breach of an implied contract and negligent infliction of emotional
distress are barred by the Mississippi Tort Claims act since he asks us to
remand for trial only his claims of breach of an express contract and intentional
infliction of emotional distress. There is insufficient evidence in the record,
however, to support either cause of action.
A
Under Mississippi law, the elements of a breach-of-contract claim are:
(1) the existence of a valid and binding contract and (2) the defendant’s breach
of that contract. 41 While employee handbooks can create obligations on
38 Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008).
39 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
40 Engquist, 553 U.S. at 603-05 (“[T]he class-of-one theory of equal protection—which
presupposes that like individuals should be treated alike, and that to treat them differently
is to classify them in a way that must survive at least rationality review—is simply a poor fit
in the public employment context.”).
See Bus. Commc’ns, Inc. v. Banks, 90 So. 3d 1221, 1224-25 (Miss. 2012) (holding
41
that monetary damages are a remedy, not an element of a breach-of-contract claim).
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employers that become “part of the contract,” 42 employers can prevent the
handbooks from imposing contractual obligations by merely including a
disclaimer of contractual rights. 43
Klingler argues USM breached his employment contract by not giving
him the opportunity to satisfy the criteria for tenure and by not following the
grievance procedures outlined in Chapter 12. Both of these contractual
“rights” stem from the Handbook, not Klingler’s employment contract. But,
the Handbook expressly provides that its “policies are intended only to be
guidelines for employment at USM, and they do not give rise to any contractual
rights.” Therefore, under Mississippi law, USM was not contractually
obligated to follow the procedures set forth in the Handbook. In any event, as
discussed above, USM did comply with the procedures set forth in Chapter 12.
Klingler’s breach of contract claim fails as a matter of law.
B
A plaintiff can recover for emotional distress in the absence of physical
injury in Mississippi “when the defendant’s conduct evokes outrage or
revulsion.” 44 A plaintiff must show that the defendant “intentionally and
maliciously” sought to do him or her harm. 45 Additionally, claims “for
intentional infliction of emotional distress will not ordinarily lie for mere
employment disputes” 46 and “[o]nly in the most unusual cases does the conduct
42 Bobbitt v. Orchard, Ltd., 603 So. 2d 356, 361 (Miss. 1992).
43Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 848 (Miss. 2001);
see also Byrd v. Imperial Palace of Miss., 807 So. 2d 433, 438 (Miss. 2001) (“[W]e uphold
Imperial’s right to discharge Byrd, even in light of the grievance procedure, because of the
handbook’s statement that Imperial did not intend to waive its right to unilaterally terminate
an employee by promulgating the handbook.”).
44 Gamble ex rel. Gamble v. Dollar Gen. Corp., 852 So. 2d 5, 11 (Miss. 2003).
45 Morgan v. Greenwaldt, 786 So. 2d 1037, 1044 (Miss. 2001).
46 Lee, 797 So. 2d at 851.
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Case: 14-60007 Document: 00513037571 Page: 17 Date Filed: 05/11/2015
No. 14-60007
move out of the realm of an ordinary employment dispute into the classification
of extreme and outrageous, as required for the tort of intentional infliction of
emotional distress.” 47
Klingler has alleged no conduct by USM or its officials that would evoke
outrage or revulsion or that would indicate they acted intentionally or
maliciously toward him. Klingler’s claim of intentional infliction of emotional
distress fails as a matter of law.
* * *
For the foregoing reasons, the decision of the district court granting
summary judgment to USM, Saunders, and Lyman on all of Klingler’s claims
is AFFIRMED.
47 Brown v. Inter-City Fed. Bank for Sav., 738 So. 2d 262, 265 (Miss. 1999) (internal
quotation marks and citations omitted).
17