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Singh v. Cordle

United States Court of Appeals, Tenth Circuit

August 28, 2019

RAJESH SINGH, Ph.D., Plaintiff - Appellee/Cross-Appellant,
DAVID P. CORDLE, Ph.D., Defendant-Appellant/Cross-Appellee, and MICHAEL D. SHONROCK, Ph.D.; GWEN ALEXANDER, Ph.D.; ANDREW J.M. SMITH, Ph.D.; EMPORIA STATE UNIVERSITY, Defendants - Cross-Appellees. RAJESH SINGH, Ph.D., Plaintiff - Appellant,

          Appeals from the United States District Court for the District of Kansas (D.C. No. 2:15-CV-09369-JWL)

          David R. Cooper, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas for Defendants/Appellant/Cross-Appellees.

          Donald N. Peterson, II (Sean M. McGivern, on the briefs), Graybill & Hazlewood LLC, Wichita, Kansas for Plaintiff/Appellee/Cross-Appellant.

          Before LUCERO, HARTZ, and CARSON, Circuit Judges.


         Beginning in August 2009, Plaintiff Rajesh Singh worked as an untenured professor in the School of Library and Information Management (SLIM) at Emporia State University (ESU). He was informed in February 2014 that his annual contract would not be renewed. He sued ESU and various administrators in their individual capacities, asserting several retaliation and discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq.; and the Civil Rights Act of 1871, 42 U.S.C. § 1983. The United States District Court for the District of Kansas granted summary judgment for Defendants on every claim except one: a First Amendment retaliation claim under § 1983 against Provost David Cordle.

         Provost Cordle appealed from the denial of summary judgment on the ground that he was entitled to qualified immunity. The district court then certified as final under Fed.R.Civ.P. 54(b) its order granting summary judgment on all other claims, and Plaintiff filed a cross-appeal. The cross-appeal challenges the district court's grant of summary judgment on (1) Plaintiff's claims that ESU and the individual Defendants discriminated against him by not renewing his contract, and (2) his claims that ESU and the individual Defendants retaliated against him for filing discrimination complaints with ESU's human resources department and the Kansas Human Rights Commission (KHRC). The claims against ESU are brought under Title VII and the KAAD, and the claims against the individual Defendants are brought under § 1983.

         Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's denial of summary judgment for Provost Cordle and we affirm the district court's grants of summary judgment on the remaining claims. Cordle is entitled to qualified immunity because he could have reasonably believed that the speech for which he allegedly punished Plaintiff was not on a matter of public concern, which is one of the prerequisites for employee speech to be protected by the First Amendment. As for the discrimination claims, the district court properly granted summary judgment because Plaintiff did not establish a genuine issue of fact that ESU's given reason for his nonrenewal-that he was noncollegial-was pretextual. Although Plaintiff contends that these discrimination claims survive under the cat's-paw theory of liability, he does not provide adequate evidence that the allegedly biased supervisor-his school's dean-proximately caused the ultimate nonrenewal decision. Finally, we affirm the grant of summary judgment on Plaintiff's retaliation claims because he failed to present adequate evidence that the ESU employees who allegedly retaliated against him knew that he had filed formal discrimination complaints.

         I. BACKGROUND

         A. Factual Background

         1. Relevant Policies and Procedures

         Plaintiff was appointed to the position of assistant professor at SLIM in 2009. Under the ESU policy manual, such an appointment begins a probationary period of six years, which involves "a period of annual contract renewal preceding the granting of tenure." Aplt. App., Vol. II at 242. In accordance with this policy manual, SLIM has established a review process for tenure-track faculty. The SLIM Faculty Promotion Committee (FPC), composed of all SLIM's full-time tenured faculty, conducts annual performance reviews to evaluate each tenure-track faculty member's teaching, research, and service to the school. Based on the annual review, the FPC votes for or against reappointing the faculty member. The FPC's recommendation is sent to the school's dean, who reviews it and sends her own recommendation to the provost of ESU. The provost in turn reviews the file and sends a recommendation to ESU's president, who makes the final decision. The faculty member being reviewed is informed of the recommendation at each stage of this process.

         In addition to this review established by SLIM, the ESU policy manual permits faculty members to submit a grievance on any perceived impropriety in the review process that led to their nonrenewal. A grievant can obtain the assistance of an ombudsperson-a faculty member trained to help the grievant settle the dispute with respondents without having to file a formal petition. If the grievant files a formal petition, the parties to the dispute select five persons to serve on the grievance committee from a 20-person pool of unclassified academic and administrative personnel known as the Grievance Committee Panel. Each party is allowed to strike panel members for cause and to strike up to two members without cause. The parties submit to the committee their evidence and lists of witnesses, and may request documentary evidence from the opposing party. After reviewing this evidence, the grievance committee may hold a hearing on the issues that remain unresolved. The committee then submits a report and its recommendations to the university president, who makes the final decision about how to resolve the grievance.

         If ESU decides not to reappoint a faculty member during the six-year probationary period preceding the grant or denial of tenure, it must follow certain procedures. For instance, before not reappointing a faculty member with two or more years of service, the university must provide notice to the faculty member more than 12 months before the final reappointment expires.

         2. Plaintiff's Early Years at ESU

         Difficulties in the relationship between Plaintiff and his supervisor, SLIM Dean Gwen Alexander, appear to have arisen within his first year of employment. In June 2010, Plaintiff complained to Dean Alexander about other incoming faculty members receiving higher salaries than he did. He also complained about a colleague, Dr. Andrew Smith, receiving credit toward tenure for a prior appointment in a non-tenure-track position. Despite these complaints, Alexander gave Plaintiff a positive evaluation in December 2010, lauding his teaching and research. Yet Plaintiff complained to Alexander and the provost that his evaluation was not positive enough because it failed to reflect the extent of his contributions to SLIM and it unfairly implied that he was not collegial. The following month, Plaintiff filed a grievance about Alexander's management of SLIM, but he soon withdrew it.

         The FPC's annual reviews in 2011 and 2012 concluded (and the dean agreed) that Plaintiff's teaching and research were impressive and that his probationary appointment should be renewed. But each of the FPC's reviews described his service as merely adequate and noted his lack of collegiality.

         Plaintiff, who was born and educated in India, contends that the assertions that he was noncollegial were unfair-the result of anti-Asian bias. This accusation of bias finds some support in the testimony of former SLIM faculty members, at least in regard to Dean Alexander. According to former faculty member Christopher Hinson, Alexander held employees of color to a different standard than white employees, and she spoke to Plaintiff in a "harsh" and "demeaning" way. Aplt. App., Vol. VIII at 1395. Hinson also testified that Alexander opposed introducing two new academic programs that she thought would attract mostly Chinese students, and that Alexander said that Plaintiff struggled to learn to drive a car because Indians have difficulty judging space and distance. Lynne Chase, another former member of the SLIM faculty, testified that Alexander treated nonwhite faculty unfairly and openly lamented that so many Asians were applying for faculty positions at SLIM. Chase also said that Alexander yelled at Plaintiff in faculty meetings, noting one occasion when Plaintiff had asked why proper procedure had not been followed for his second-year evaluation and another occasion when Alexander called him a misogynist for addressing a female faculty member by her first name. And Cameron Tuai, a former SLIM faculty member of Asian descent, testified that Alexander stated that SLIM should not rely on GRE scores in admissions because Asian students "dominate" the analytical section, and that Alexander remarked that ESU's writing center was unhelpful to students because "all they do []is hire Asian people." Aplt. App., VIII at 1362. Also, Dr. Smith and Dr. Mirah Dow (another white SLIM faculty member) allegedly stated at a faculty retreat that the department did not need to worry about diversity because Kansas was a "white state." Id. at 1396. Alexander herself testified that it appeared to her that Plaintiff "felt that the white administration was elitist and not respectful of him," id. at 1426, and that she believed Plaintiff was ageist, misogynistic, and racist against white people.

         3. The 2013 Reviews by the FPC and Dean Alexander

         In November 2013 the FPC (Dr. Smith, Dr. Dow, and Dr. Ann O'Neill) again conducted Plaintiff's annual review, but this time it recommended that Dean Alexander not renew his appointment. It described deficiencies in Plaintiff's teaching, research, and service, and reported yet again that Plaintiff behaved disrespectfully and uncollegially toward his colleagues.

         Plaintiff directs us to evidence that calls into question the legitimacy of the FPC's review process. Mr. Hinson testified that Dean Alexander told him that she was going to "get rid of" Plaintiff because he was noncollegial. Aplt. App., Vol. VIII at 1403. And there is email evidence that Dr. Smith-a member of the FPC-communicated with Alexander about how to craft the FPC's letter recommending that the dean not renew Plaintiff's appointment.

         Soon after the FPC recommended his nonrenewal, Plaintiff submitted a line-byline rebuttal to his alleged shortcomings. But the FPC stood by its recommendation, and in January 2014 Dean Alexander concurred and recommended that Provost Cordle not reappoint Plaintiff.

         4. Provost Cordle's Review

         While the nonrenewal recommendation was before Provost Cordle, Plaintiff brought an informal grievance against SLIM for the recommendation of nonrenewal and for various other problems dating back to his 2010 salary dispute with Dean Alexander. He obtained the assistance of an ombudsman-Professor Michael Morales of the Physical Sciences Department-with the goal of resolving the dispute without triggering the formal grievance process.

         Plaintiff gave the ombudsman a lengthy binder challenging Alexander's nonrenewal recommendation, which the ombudsman delivered to Provost Cordle. The binder consisted of a 32-page presentation and 28 attachments of more than 100 pages. It included information about Plaintiff's early salary dispute with Alexander, allegations of interference with his academic freedom, allegations of preferential treatment of Dr. Smith, and letters of support from colleagues. It also included a section titled "Unfairness, Favoritism and Discrimination," which alleged that SLIM had a biased culture and a high turnover rate among faculty of color. Provost Cordle reviewed this binder, as well as the recommendations by the FPC and Alexander, when considering Plaintiff's reappointment.

         In February 2014 Provost Cordle sent Plaintiff a letter stating that he would follow the recommendations not to renew his appointment. Cordle explained that although he did not agree with the FPC and Dean Alexander that Plaintiff's teaching and research were grounds for nonrenewal, Plaintiff's failure to work constructively with his colleagues was sufficient ground:

The primary factor in my decision is your failure to work as a positive member of your school's academic team. Dean Alexander and the FPC report that you denigrate the school and your fellow faculty members, that you display a negative attitude toward your colleagues, and that you are unwilling to accept guidance and direction. Sadly, the materials that you submitted to me in support of your reappointment tend to substantiate these impressions. In these materials, you focus inordinately on belittling your colleagues' accomplishments and demonstrate a tendency to reject even the most constructive criticism.

Aplt. App., Vol. VII at 1178. In keeping with the university policy requiring at least 12 months' advance notice of nonreappointment, Cordle informed Plaintiff that his appointment as a professor would end at the close of the 2014-15 academic year.

         For Plaintiff's terminal appointment, Dean Alexander initially assigned him to teach three fall-semester courses. Promptly thereafter, Plaintiff submitted formal discrimination complaints to ESU's human resources department and to the KHRC. Two months later, before the semester began, Alexander stripped Plaintiff of his teaching assignments-purportedly because he spoke poorly of SLIM to students. In addition, Alexander and Cordle decided, after consultation with the ESU general counsel and President Shonrock, to change the locks on Plaintiff's office door. Plaintiff alleges that they terminated his teaching duties and changed his locks because of his formal discrimination complaints.

         5. Grievance Committee's Review

         In August 2014 Plaintiff filed a formal grievance petition challenging his nonrenewal. The grievance asserted that Dean Alexander and the members of the FPC were biased against him because of his national origin and race, and had unfairly targeted him because he had raised the issue of pay inequity in 2010. It further asserted that Provost Cordle had no reasonable basis to follow the recommendations of those biased decisionmakers. Plaintiff submitted over 250 pages of documents to substantiate his allegations and to challenge Cordle's findings that he had failed to work as a positive member of SLIM.

         After filing his grievance, Plaintiff took part in selecting the grievance-committee members from the Grievance Committee Panel. Dr. Scott Waters served as the chair of the committee. After receiving the parties' initial submissions, the committee held its first meeting in early October and requested additional information from Plaintiff. He submitted the information a few days later. The committee also shared with Plaintiff the documentation submitted by the respondents. The committee ultimately reviewed over 1, 000 pages of documents from the parties.

         In November 2014 the committee issued an initial determination, affirming the decision not to reappoint Plaintiff and declining to hold an evidentiary hearing. In the following weeks, Plaintiff submitted two responses to this decision. After considering these responses, the committee issued its final decision, in which it affirmed Plaintiff's nonrenewal. The committee explained that it had unanimously concluded that the evidence did not show that the nonrenewal was the product of discrimination, favoritism, interference with academic freedom, or failure to evaluate him based on standard criteria.

         Although the committee affirmed the decision not to reappoint Plaintiff, it also sent a private memorandum to Provost Cordle and ESU President Michael Shonrock alerting them to problems uncovered by the grievance process. This memorandum explained that SLIM suffered from leadership failures and pervasive micromanagement, and that at ...

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