Gorden v. Jackson State Univ

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 12, 1996
• Docket: 95-60505
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-60505 Summary Calendar _______________________

W C GORDEN,

Plaintiff-Appellant,

versus

JACKSON STATE UNIVERSITY; BOARD OF TRUSTEES OF INSTITUTIONS OF HIGHER LEARNING; JAMES E LYONS, SR, Individually and in his official capacity as President of Jackson State University; EVALEE BANKS, Individually and in her official capacity as Vice President of Jackson State University; ALL DEFENDANTS,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (3:95-CV-89) _________________________________________________________________

April 18, 1996 Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

W.C. Gorden appeals the district court’s grant of summary

judgment dismissing his claims against defendants following his

termination as Athletic Director at Jackson State University and

his assignment to the Department of Health, Physical Education, and

Recreation. For the reasons that follow, which are essentially the

same as those stated by the district court, we AFFIRM.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. I. BACKGROUND

On July 1, 1994, W.C. Gorden entered into a one-year

written contract with the Board of Trustees of State Institutions

of Higher Learning of the State of Mississippi concerning his

employment at Jackson State University. Prior to entering into

this contract, Gorden had been employed at Jackson State for over

twenty-six years, serving in a variety of positions within the

Health and Physical Education Department and within the

University’s Athletic Administration.

The employment contract signed by Gorden was simple and

straightforward. Page one of the contract provided that Gorden was

to be employed as an “Instructor of Health” and as “Director of

Athletics” within the Department of Health, Physical Education, and

Recreation, and the Department of Athletics Administration. The

term of the contract was for one year, beginning July 1, 1994 and

ending June 30, 1995, at a stated salary. Page two provided that

Gorden would serve as Jackson State’s “Director of Athletics.”

Page three discussed possible sanctions if Gorden committed certain

infractions and also outlined Jackson State’s right to reassign

Gorden. In full, page three provided:

Athletics (NCAA Violations and Change of Duties) The employee acknowledges that involvement in a deliberate and serious violation of any law, regulation, rule, by-law, policy or constitutional provision of the State of Mississippi, the Board, the NCAA, conference or any other governing authority may result in suspension without pay and/or termination of this contract. In addition, the University reserves the right to assign duties, to transfer, reassign, or otherwise change the duties of the Employee during the term of this contract.

2 On December 19, 1994, Evalee Banks, Vice-President of

Jackson State, summoned Gorden into her office and delivered to him

a letter signed by Jackson State President James Lyons. The letter

informed Gorden that effective immediately his employment as

Director of Athletics was terminated, and that he had been detailed

to the Department of Health, Physical Education, and Recreation.1

The letter further provided that Gorden would continue to receive

his current salary until June 30, 1995, at which time his salary

would be adjusted to reflect the salary paid instructors in the

Department of Health, Physical Education, and Recreation.

The local media broadcast and published news of Gorden’s

termination, including statements by Vice-President Banks that

Gorden claims publicly disparaged his management capabilities, his

ability to raise money, his ability to gain support from alumni,

and his ability to enhance the athletic program. The day following

his reassignment, a security officer was posted outside the

Athletic Director’s office and local news crews filmed Gorden as he

removed personal items from the office.

Following his termination as Athletic Director and

assignment to the Department of Health, Physical Education, and

Recreation, Gorden retained counsel and sent a letter to President

Lyons requesting both written reasons for his termination as

1 The letter originally given to Gorden stated that his termination as Athletic Director was effective January 19, 1995, and that his assignment to the Department of Health, Physical Education, and Recreation was effective January 20, 1995. That evening, however, Jackson State security personnel delivered a corrected letter to Gorden’s home in which the dates had been changed to December 19, 1994 and December 20, 1994.

3 Athletic Director and a hearing. President Lyons responded by

letter addressed to Gorden’s counsel stating:

Jackson State University chose to exercise its right to make an administrative change in the Department of Athletics by reassigning Mr. Gorden from part-time administration and part-time teaching responsibilities to full-time teaching responsibilities. . . . The University reassigned Mr. Gorden’s duties pursuant to his contract, and did not violate any of his statutory and constitutional rights.

Thereafter, on January 31, 1995, Gorden filed suit

against Jackson State University, the Board of Trustees of

Institutions of Higher Learning, James E. Lyons, Sr., individually

and in his official capacity, and Evalee Banks, individually and in

her official capacity (defendants). Proceeding under 42 U.S.C. §

1983, Gorden alleged that his termination and reassignment violated

his liberty and property interests protected by the Fifth and

Fourteenth Amendments. Additionally, Gorden asserted state law

claims of wrongful discharge, intentional infliction of emotional

distress, breach of contract, ultra vires termination, as well as

denial of due process under Article 3, Section 14 of the

Mississippi Constitution.

On March 1, 1995, defendants filed a Motion to Dismiss,

or alternatively, for summary judgment, as well as a motion to hold

discovery in abeyance pending a decision on the qualified immunity

defense asserted by President Lyons and Vice-President Banks. The

court granted defendants’ motion to hold discovery in abeyance and

eventually granted summary judgment and dismissed all claims with

prejudice. Gorden timely appeals.

4 II. DISCUSSION

A. Standard of Review

We review the district court’s grant of summary judgment

de novo, using the same standard as applied by the district court.

Vera v. Tue, 73 F.3d 604, 607 (5th Cir. 1996). Summary judgment

should be granted if the record discloses “that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Although

all inferences are to be drawn in favor of the nonmovant, “[i]f the

record as a whole could not lead a rational trier of fact to find

for the nonmovant, then there is no genuine issue for trial.” Vera,

73 F.3d at 607.

B. Constitutional Claims

Gorden contends that the district court erred in

concluding that he did not have a property interest in continued

employment as Athletic Director for the term of the contract, and

in holding that he had failed to present a genuine issue of

material fact as to his liberty interest claim. Gorden argues that

the employment contract is ambiguous, and that he presented

evidence creating a genuine issue of material fact regarding

whether Lyons and Banks made false and defamatory statements

regarding Gorden’s performance as Athletic Director and also

orchestrated his discharge in such a manner as to communicate that

Gorden had been involved in misconduct. We disagree.

The employment contract in question is unambiguous in

that it grants Jackson State the right to “transfer, reassign, or

5 otherwise change the duties” of Gorden during the term of the

contract. See Simmons v. Bank of Mississippi, 593 So. 2d 40, 42-43

(Miss. 1992)(court must determine the meaning of the language used

in the contract, not ascertain some unexpressed intention of the

parties); Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419

(Miss. 1987)(when construing provisions of a contract, the court

must look to the document as a whole). Based on the contract,

Gorden has failed to establish a constitutionally protected

property interest in serving as Athletic Director for Jackson

State. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct.

2701, 2709 (1972)(mere expectation does not create protected

property interest). Additionally, even if a property interest

exists, it is undisputed that when Gorden was terminated as

Athletic Director and assigned to the Department of Health,

Physical Education, and Recreation, he continued to receive the

contracted for salary contained in the July 1, 1994 employment

contract and has therefore suffered no compensable damage as a

result of his reassignment. Davis v. Mann, 882 F.2d 967, 973 (5th

Cir. 1989); see Robinson v. Boyer, 825 F.2d 64, 67 (5th Cir. 1987).

The district court did not err in granting summary judgment as to

Gorden’s property interest claim.

Concerning Gorden’s liberty interest claim, the fact that

Gorden continued as an employee with Jackson State following his

termination as Athletic Director negates his liberty interest

claim. As explained in Moore v. Otero, 557 F.2d 435, 438 (5th Cir.

1977):

6 When an employee retains his position even after being defamed by a public official, the only claim of stigma he has derives from the injury to his reputation, an interest that [Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155 (1976)] reveals does not rise to the level of a liberty interest. The internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest necessary to give rise to a liberty interest meriting protection under the due process clause of the fourteenth amendment.

Id. at 438, see Schultea v. Wood, 27 F.3d 1112, 1117-18 (5th Cir.

1994), modified on reh’g en banc, 47 F.3d 1427 (5th Cir. 1995).

The assignment of Gorden as a full-time health instructor did not

amount to “essentially a loss of employment” under Moore. The

district court properly found that Gorden has not been deprived of

a liberty interest protected by the Fourteenth Amendment.

C. State Law Claims

The district court properly granted summary judgment as

to Gorden’s state law claims. The employment contract

unambiguously provides that Jackson State may “transfer, reassign,

or otherwise change the duties” of Gorden during the term of the

contract. The University did not breach Gorden’s employment

contract by removing him as Athletic Director and assigning him, at

the same pay, to the Department of Health, Physical Education, and

Recreation, nor does the University’s conduct give rise to a claim

of wrongful discharge since Gorden was merely assigned to another

position identified by his employment contract within the

University. Additionally, Gorden’s claim of intentional infliction

of emotional distress fails because the University’s assignment of

Gorden pursuant to the contract to full-time teaching without loss

7 of pay was not “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency.” White v.

Walker, 950 F.2d 972, 978 (5th Cir. 1991)(Mississippi law)(citation

omitted). Lastly, Gorden’s due process claim under the Mississippi

Constitution fails for the same reasons Gorden’s Federal

Constitutional claims failed. Walters v. Blackledge, 71 So. 2d

433, 444 (Miss. 1954)(federal “due process” is the same as state

“due process").

D. Discovery

Gorden argues that the district court erred in granting

summary judgment without affording him the benefit of discovery.

Specifically, Gorden contends that there is an issue regarding the

meaning of the employment contract and that to grant summary

judgment without allowing him to depose and examine agents of the

University regarding their understanding of the contract was an

abuse of discretion. We disagree.

The focus of Gorden’s claim centers on the interpretation

of the employment contract between Gorden and the Board of

Trustees. The interpretation of written contracts is a question of

law decided by the court. Hall v. State Farm Fire & Casualty Co.,

937 F.2d 210, 213 (5th Cir. 1991); Holt Oil & Gas Corp. v. Harvey,

801 F.2d 773, 780 (5th Cir. 1986), cert. denied, 481 U.S. 1015, 107

S. Ct. 1892 (1987). We agree with the district court that the

contract is unambiguous in that it grants Jackson State the right

“to assign duties, to transfer, reassign, or otherwise change the

duties of [Gorden] during the term of [the] contract.” Jackson

8 State exercised this right by assigning Gorden to the Department of

Health, Physical Education, and Recreation within the University.

Gorden continued to receive the contracted for salary. Gorden has

“failed to point to any issue of material fact that could preclude

summary judgment.” NGS American, Inc. v. Barnes, 998 F.2d 296, 300

(5th Cir. 1993); see King v. Dogan, 31 F.3d 344, 346 (5th Cir.

1994). The district court did not err in granting summary judgment

prior to discovery.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.