Gies v. FlackGies v. Flack
Plaintiff Frederick Gies (“Plaintiff’ or “Gies”) brings the present action against Harley E. Flack and John F. Fleischauer (“Defendants”) in their official capacities as President and Provost, respectively, of Wright State University (“WSU”). Gies seeks declaratory and injunctive relief under 42 Ú.S.C. § 1983 for alleged deprivations by Defendants acting under color of state law of his rights under the First and Fourteenth Amendments of the United States Constitution. Subject matter jurisdiction as to those claims not barred by the Eleventh Amendment is proper in this Court pursuant to
1. Background 1
This case arises from circumstances surrounding both the June 15, 1995, removal of Plaintiff, a tenured professor at WSU, from his position as Dean of the College of Education and Human Services (“College”), and his subsequent suspension from teaching assignments and faculty participation at that College.
Plaintiff was appointed Dean of the College on August 1, 1987, at which time he also held tenure. Flack became President of WSU on February 1, 1994, 2 and Fleis-chauer became Provost of WSU on September 29,1995.
On March 6, 1995, Gies met with Flack, Will Hutzel (then WSU Provost) and Gwen Mattison (WSU counsel) to discuss irregularities perceived by WSU officials' with respect to Gies. Specifically, according to Plaintiff, Flack made the following five charges at the March 6 meeting: (1) that Gies had misappropriated income from WSU in connection with a Tortola, British
On March 24, 1995, Flack sent a letter to Jim Petro, Ohio State Auditor, concerning Gies. Copies of the letter were also sent to the Governor, the Ohio Board of Regents Chancellor and the WSU Board of Trustees.
On March 27, 1995, Gies met with Hut-zel and Mattison and was asked to resign or go on administrative leave, of which he chose the latter. Thereafter, Geis had no control of College accounts. On the next day, March 28, 1995, Flack directed the WSU Office of Public Relations to issue a news release to the media accusing Gies of unethical and illegal conduct prompting an investigation. Flack and Fleischauer subsequently caused a second press release to issue on November 2, 1995, accusing Gies of serious improprieties. Finally, on June 15, 1995, Flack sent Gies a letter notifying him that he was removed as Dean of the College. Flack sent a copy of this letter to Hutzel, Gregory Bernhardt (Acting Dean of the College), Mattison and Joyce Carter (WSU Director of Human Resources).
On July 17, 1995, Acting WSU Provost Lillie Howard sent Gies a letter informing him of the reassignment of his office to a room in the basement of the WSU Kettering Center in downtown Dayton, which had neither windows nor a telephone, directed him not to have professional contact with any College faculty or staff absent Bernhardt’s approval and advised him to contact Bernhardt if he needed to be on campus. After Gies returned from administrative leave, Bernhardt assigned him duties for the 1995-96 academic year, which included preparation of accreditation materials and reviewing of a proposal for a doctoral program in the College, but which did not include teaching assignments.
On October 9, 1995, Fleischauer sent Flack a letter indicating that there was just cause to remove Gies as a tenured faculty member and set forth a statement of eleven charges pursuant to Section 2, Article VII of the WSU handbook, which contains procedures for removal and suspension of tenured faculty. Gies also received this letter and the charges. The parties attempted to resolve these issues informally at a mediation session on November 8, 1995. No resolution was reached. As the detenurization process moved forward, Gies filed various motions to continue, which were denied, including one seeking a continuance of a February 28, 1996, hearing, in which he asserted his Fifth Amendment right not to incriminate himself. On February 26, 1996, Gies filed the present action seeking injunctive relief to stop the detenurization process. A hearing on said injunctive relief was continued because Gies asserted his right to remain silent. Subsequently, a stay was entered pending resolution of Grand Jury proceedings against Gies (Doc. # 23).
On May 17, 1996, the Greene County Grand Jury returned a 27-count indictment, which included felony theft of WSU funds, against Gies. Gies plead guilty to a violation of
Gies was sentenced on June 17, 1997, to incarceration as well as restitution to WSU of $43,588.66, less any money owed to him by WSU. The restitution order was subsequently modified to reflect that WSU owed Gies $20,447.31 in vacation payout and wages, but Gies claims that he was not given credit for money owed him other than for vacation days.
The original Complaint in this matter sought injunctive, declaratory and other relief under
Specifically, Plaintiff alleges that the stated reason for his removal from the position of Dean — that financial accounts for which he was responsible had incurred major deficits and irregularities, causing significant financial difficulties to WSU— was false and that Flack did not receive approval from WSU’s Board of Trustees before removing him. He further alleges that Flack issued a false public statement of a stigmatizing nature at the time of his removal as Dean, which had a direct impact on his ability to seek employment. He also alleges that the actions taken following his removal as Dean, but before the commencement of the formal detenurization process, essentially stripped him of the benefits of his tenured position.
The matter is currently before the Court on Defendants’ Motion for Summary Judgment, construed in part as a Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to
II. Standards Governing Motions for Summary Judgment
Summary judgment must be entered “against a party who fails to make a show
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the' affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.
Id.
at 323,
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
III. Analysis
In addition to arguing that Plaintiffs claims fail on their merits, Defendants argue that Plaintiff is barred by the Eleventh Amendment from bringing suit in this Court. Because Defendants’ argument under the Eleventh Amendment implicates this Court’s subject matter jurisdiction, the Court addresses that issue before addressing the merits of Plaintiffs claims.
A. Sovereign Immunity
Defendants argue that summary judgment is proper because Plaintiffs claims are barred by sovereign immunity. Rather than
The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.” Notably, although the text of the Amendment does not expressly preclude citizens from suing their
own
state in federal court, the Supreme Court has long interpreted it to bar such suits due to the fundamental principle of sovereign immunity.
See Welch v. Texas Dept. of Highways and Public Transp.,
It is well-established that, absent consent, suit against a state or one of its instrumentalities in federal court is barred by the Eleventh Amendment.
Pennhurst State Sch. & Hosp. v. Halderman,
To the extent that Plaintiffs claims seek
prospective
injunctive or declaratory relief, however, they are not barred. This exception to the general rule of Eleventh Amendment immunity was announced by the Supreme Court in
Ex Parte Young,
Whether a suit against State officials in then' official capacity is deemed to be against the State [and therefore impermissible] depends on whether the plaintiff seeks “retroactive” or “prospective” relief. Retroactive relief compensates the plaintiff for a past violation of his legal rights. This compensation usually takes the form of money damages. Because a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself, the State is the real, substantial party in interest with regard to a claim for retroactive relief, and thus is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. In other words, since an official-capacity claim for retroactive relief is deemed to be against the State whose officers are the nominal defendants, the claim is barred by the Eleventh Amendment.
In contrast, prospective relief merely compels the state officers’ compliance with federal law in the future.... Thus, official-capacity claims for declaratory relief are not barred by the Eleventh Amendment, even if the officers’ future compliance with federal law would have some “ancillary” effect upon the State treasury.
Doe v. Wigginton,
Young’s applicability has been tailored to conform as precisely as possible to those specific situations in which it is necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States. Consequently, Young has been focused on cases in which a violation of federal law by a state official is ongoing[,] as opposed to cases in which federal law has been violated at one time or over a period of time in the past, as well as on cases in which the relief against the state official directly ends the violation of federal law[,] as opposed to cases in which that relief is intended indirectly to encourage compliance with federal law through deterrence or directly to meet third-party interests such as compensation ....
Relief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred [by the Eleventh Amendment] even when the state official is the named defendant. This is true if the relief is expressly denominated as damages. It is also true if the relief is tantamount to an award of damages for a past violation of federal law, even though styled as something else. On the other hand, relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury.
Id.
at 277-78,
Herein, Plaintiff requests three different types of relief: (1) a declaration that Defendants violated his rights (by failing to provide Plaintiff with a name-clearing hearing after allegedly making false, public allegations against him, in violation of the
1. Declaratory Relief
Although a request for a declaration that past official acts were illegal does not directly seek monetary relief (which, as explained
supra,
is in clear violation of the Eleventh Amendment), such a request, if it is clearly an indirect means of seeking retroactive monetary relief, is barred by the Eleventh Amendment, nonetheless. The Supreme Court dealt with such an attempt in
Green v. Mansour,
There is a dispute about the lawfulness of [a state official’s] past actions, but the Eleventh Amendment would prohibit the award of money damages ... if that dispute were resolved in favor of [the plaintiffs]. We think that the award of a declaratory judgment in this situation would be useful in resolving the dispute over the past lawfulness of respondent’s action only if it might be offered in state-court proceedings as res judicata on the issue of liability, leaving to the state courts only a form of accounting proceeding whereby damages or restitution would be computed. But the issuance of a declaratory judgment in these circumstances would have much the same effect as a full-fledged award of damages or restitution by the federal court, the latter kinds of relief being of course prohibited by the Eleventh Amendment. [Prior decisions of this Court demonstrate] that a declaratory judgment is not available when the result would be a partial “end run” around our decision in Edelman v. Jordan.
Id.
at 73,
Plaintiff seeks a declaration that Defendants violated his rights in the past by failing to provide a name-clearing hearing upon his removal as Dean, by failing follow the WSU handbook detenurization procedures, by removing the trappings of his tenure pre-detenurization and by prematurely terminating his employment without due process. Furthermore, in his Response to Defendants’ Motion for Summary Judgment, Plaintiff admits that he seeks to do exactly that which is prohibited by Green v. Mansour:
It is Plaintiffs intention to offensively use this court’s declaration in the [Ohio] Court of Claims as res judicata to the issues actually litigated, leaving the Court of Claims only a “form of accounting proceeding whereby damages or restitution would be computed.” [Green v. Mansour,474 U.S. at 73 ,106 S.Ct. at 428 .] The Plaintiff would argue that the statute of limitations in the Court of Claims has been equitably tolled during the pendency of this proceeding, leaving the Plaintiff only to file his action armed with the Court’s declaration that at least his Due Process and First Amendment rights were violated.
Doc. # 58 at 13. However, even given Plaintiffs admission that he seeks declaratory relief for a purpose that is expressly foreclosed by the Supreme Court’s interpretation of the Eleventh Amendment, not
all
of his claims for declaratory relief are
2. Back Pay
Insisting that he was wrongfully removed from his position as Dean without a name-clearing hearing, Plaintiff also seeks back pay from the date of his removal. However, suits against a state for retroactive compensatory relief, such as back pay, are barred by the Eleventh Amendment.
See Edelman,
3. Name-Clearing Hearing and Reinstatement
Plaintiff also asks the Court to order that Defendants provide him with a name-clearing hearing “to erase the stigma that attached at the time his removal as Dean was effective” as well as reinstatement to the position of Dean (Compl.).
Defendants argue that Plaintiffs request for reinstatement is barred by the Eleventh Amendment because, they insist, it would constitute retroactive relief. In support, they rely on this Court’s decision in
Dvorak v. Wright State Univ.,
If the reinstatement requested herein by Plaintiff sought an effective promotion of the sort sought by the plaintiff in
Dvorak,
the Court would be inclined to agree with Defendants that Plaintiffs claim would be barred by the Eleventh Amendment. However, Plaintiff herein is not seeking, as Dvorak was, reinstatement to a position that he had not previously held. Instead, he seeks reinstatement to the position of Dean — a position he held until he was removed, allegedly in violation of his constitutional rights. In fact, the Sixth Circuit has explicitly held that “claims for reinstatement are prospective in nature and appropriate subjects for
Ex parte Young
actions.”
Carten v. Kent State University,
Nor is Plaintiffs accompanying claim, which requests a name-clearing hearing, barred by the Eleventh Amendment. As the Sixth Circuit has observed, the “bottom line” of analysis under the Eleventh Amendment is a determination of “whether the suit would ‘impose a liability which must be paid from public funds in the state treasury.’ Prospective relief which has an incidental or ancillary effect on the state treasury will be allowed.”
Thomson v. Harmony,
In sum, Claim 2 (seeking a declaration that Defendants violated Plaintiffs constitutional rights by failing to follow WSU’s handbook detenurization procedures), Claim 3 (seeking a declaration that Defendants violated Plaintiffs constitutional rights by removing the trappings of his tenure pre-detenurization) and Claim 4 (seeking a declaration that Defendants violated Plaintiffs constitutional rights by prematurely terminating him without due process) are dismissed because the Eleventh Amendment bars this Court from hearing them.
B. Merits of Plaintiff’s Claims for Name-Clearing Hearing and Reinstatement (Part of Claim 1)
Having concluded that Plaintiffs claims for reinstatement and for a name-clearing hearing are not barred by the Eleventh Amendment, the Court now addresses those claims on their merits with respect to Defendants’ motion for summary judgment. For the reasons that follow, summary judgment is proper with respect to both. The Court begins by analyzing Plaintiffs claim that Defendants’ failure to give him a name-clearing hearing deprived him of his due process rights.
The Fourteenth Amendment forbids state actors from depriving individuals of life, liberty or property without due process of law.
See Mertik v. Blalock,
The Sixth Circuit has identified five factors that a plaintiff must show in order to establish that he was deprived of a liberty interest and entitled to a name-clearing hearing.
First, the stigmatizing statements must be made in conjunction with the plaintiffs termination from employment.... Second, a plaintiff is not deprived of his liberty interest when the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance.... Third, the stigmatizing statements or charges must be made public. Fourth, the plaintiff must claim that the charges made against him were false. Lastly, the public dissemination must have been voluntary.
When this Court sustained in part and overruled in part Defendants’ motion to dismiss Plaintiffs First Amended Complaint, it noted three decisions from the Sixth Circuit relevant to the facts of this case:
In Garvie v. Jackson,845 F.2d 647 , 652 (6th Cir.1988), the Sixth Circuit held that a tenured college professor who had been removed as a Dean of the College of Liberal Arts, but continued to be employed as a tenured professor, did not have a “clearly established” liberty right to protecting his reputation even though he claimed that he had been defamed, as “an individual has no constitutionally protected interest in reputation alone.” Although Garvie considered only whether such a liberty right was “clearly established,” the Sixth Circuit subsequently held that where a tenured professor was removed as department head but was unable to show any harm or prejudice because his status as a tenured professor was unaffected, he did not have a liberty interest based on harm to reputation. Chauhan v. Baker, No. 87-3809,1988 WL 137332 , at *2 (6th Cir.1988). To reach this holding, the Sixth Circuit expressly relied on a previous decision which had held that employees only possess a protected property or liberty interest where there is “a substantial, tangible harm and a material change to an employee’s status ... [plaintiff must allege that defendants] took [ ] steps that significantly and materially impaired plaintiffs agreed employment status.” Samad v. Jenkins,845 F.2d 660 , 662 (6th Cir.1988). In Chauhan, the Sixth Circuit set forth this requirement and then concluded that this showing was not met by the plaintiff.
Doc. # 20 at 8-9. Since that time, the Sixth Circuit has interpreted an employee’s liberty interest even more strictly by concluding that nothing short of termination constitutes a constitutional violation: “We ... hold that where a state employee was not terminated incident to the unfavorable statement, there was no violation of the liberty interest protected by the Due Process Clauses.”
Lisle v. Metro. Gov’t of Nashville and Davidson County, Tenn.,
Citing only this Court’s prior decision, Plaintiff argues that his banishment to the basement of the WSU Kettering Center and the prohibition of professional contact with the College faculty or staff amounted to substantial, tangible harm (Doc. # 58 at 8). However, because Plaintiff was not terminated from his employment, he has no claim to a deprivation of his liberty interest. Accordingly, summary judgment is proper with respect to his claim requesting an order that Defendants provide him with a name-clearing hearing. 8
IV. Conclusion
In conclusion, Claims 2, 3 and 4 must be dismissed because they seek retroactive declaratory relief in violation of the Eleventh Amendment. Similarly, Plaintiffs claim for back pay contained in Claim 1 must be dismissed because it seeks monetary damages from the State in violation of the Eleventh Amendment. Finally, although not barred by the Eleventh Amendment, Plaintiff presents no genuine issue of material fact as to the remaining components of Claim 1, to wit: whether he is entitled to a name-clearing hearing and reinstatement. Accordingly, Defendants’ Motion for Summary Judgment, construed in part as a Motion for Lack of Subject Matter Jurisdiction Pursuant to
The captioned cause is hereby terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
Notes
. For purposes of ruling on Defendants’ Motion for Summary Judgment, the Court will construe the facts, and all reasonable inferences drawn therefrom, in a light most favorable to the Plaintiff, who is the non-moving party.
. Flack died on March 29, 1998, prior to the filing of the Second Amended Complaint. In his Response, Plaintiff moves, pursuant to
. The Court notes that attorney fees
are
permissible under the Eleventh Amendment when paid from state treasuries to successful plaintiffs in civil rights actions pursuant to
. But see infra, holding that Plaintiff is indeed not entitled to a name-clearing hearing.
. At first glance, it may appear that Plaintiff's fourth basis for declaratory relief (that he allegedly was terminated without due process), like the first basis for declaratory relief, is related to a request for injunctive relief, to wit: Plaintiff’s request that the Court order that he be reinstated. However, those two arguments are, in fact, not related. Specifically, as explained infra, Plaintiff's request for injunctive relief of reinstatement is based upon the alleged failure of Defendants to provide Plaintiff with a name-clearing hearing, whereas the basis for Plaintiff's request for a declaration that he was terminated without due process is based on an argument that Defendants allegedly failed to follow administrative policies and procedures established by WSU.
. Because Plaintiff’s allegation that Defendants’ failure to afford him a name-clearing hearing implicates a liberty interest and not a property interest, the Court addresses the present claim only according to the former. The Court offers no opinion as to any alleged deprivation of Plaintiff’s property interest in the trappings of his tenure. That issue is implicated by Claim 3, which the Court dismissed, supra, because it is barred by the Eleventh Amendment.
. Although Plaintiff did hold a tenured professorship with WSU, his removal as professor is not the basis for his request for a name-clearing hearing. Instead, it is his removal as Dean, a position for which there was no tenure protection.
. Because the fact that Plaintiff was not terminated makes it impossible for him to pre
. Moreover, even if Plaintiff were entitled to a name-clearing hearing, dismissal of his claim for reinstatement would still be appropriate.
An employee's liberty interest in a name-clearing hearing is implicated only
after
he is terminated.
See Quinn,
Although Plaintiff appears to seek this relief in connection with his asserted right to a name-clearing hearing, this Court notes that the law does not require that such a hearing be granted before an employee is terminated; indeed, termination — or a material impairment to one's employment status — is a necessary prerequisite to the entitlement to a name-clearing hearing. Therefore, to the extent that Plaintiff would argue that he was entitled to such a hearing prior to his termination — and therefore should be reinstated as Dean and awarded back pay until he is provided with such a hearing — this Court would reject such an argument.
Doc. #20 at 13. n. 5 (emphasis in original). At no point in his Response to Defendants’ Motion for Summary Judgment does Plaintiff deny that his claim for reinstatement is based on his claim for a name-clearing hearing, nor does he refute the suggestion that such a basis must result in the dismissal of his claim for reinstatement. Accordingly, deprivation of a name-clearing hearing could not be the basis for Plaintiff to be reinstated.